                                                                                              ACCEPTED
                                                                                          03-15-00303-CV
                                                                                                  7197657
                                                                               THIRD COURT OF APPEALS
                                                                                          AUSTIN, TEXAS
October 7, 2015                                                                      10/1/2015 9:37:11 PM
                                                                                        JEFFREY D. KYLE
                                                                                                   CLERK
                               NO. 03-15-00303-CV

                                                          RECEIVED IN
                                                     3rd COURT OF APPEALS
                         IN THE COURT OF APPEALS         AUSTIN, TEXAS
                     FOR THE THIRD DISTRICT OF TEXAS 10/1/2015 9:37:11 PM
                                 AT AUSTIN             JEFFREY D. KYLE
                                                             Clerk


                               ROSE ENA CANTU
                                            Appellant,

                                         V.

        SOUTHERN INSURANCE COMPANY AND STEVE DOLLERY
                                    Appellees,


         Appeal from the 21st Judicial District Court, Bastrop County, Texas
                          Trial Court Cause No. 053-21
                         Hon. Carson Campbell, Presiding


                  BRIEF OF APPELLANT, ROSE ENA CANTU


   M. Chad Gerke                              (713) 467-8883 Facsimile
   Texas Bar No. 24027390                     houstonlaw2@aol.com
   Robert L. Collins
   Texas Bar No. 04618100                     Christopher D. Lewis
   Audrey E. Guthrie                          Texas Bar No. 24032546
   Texas Bar No. 24083116                     1721 West T.C. Jester Blvd
   P.O. Box 7726                              Houston, Texas 77008
   Houston, Texas 77270-7726                  (713) 553-4104
   (713) 467-8884                             (713) 467-8883 Facsimile



                       ORAL ARGUMENT REQUESTED
                 IDENTITY OF PARTIES AND COUNSEL

Appellant                            Counsel for Appellant
Rose Ena Cantu                       M. Chad Gerke
                                     Texas Bar No. 24027390
                                     Robert L. Collins
                                     Texas Bar No. 04618100
                                     Audrey E. Guthrie
                                     Texas Bar No. 24083116
                                     P.O. Box 7726
                                     Houston, Texas 77270-7726
                                     (713) 467-8884
                                     (713) 467-8883 Facsimile
                                     houstonlaw2@aol.com

                                     Christopher D. Lewis
                                     Texas Bar No. 24032546
                                     1721 West T.C. Jester Blvd
                                     Houston, Texas 77008
                                     (713) 553-4104
                                     (713) 467-8883 Facsimile


Appellee                             Counsel for Real Parties in Interest
Steve Dollery                        Ms. Catherine L. Hanna 
Southern Insurance Company           Ms. Laura D. Tubbs 
                                     Mr. Eric S. Peabody 
                                     Hanna & Plaut, LLP 
                                     211 East Seventh Street, Ste. 600
                                     Austin, Texas 78701




                                ii
                                           TABLE OF CONTENTS

Identity of Parties and Counsel ............................................................................... ii

Index of Authorities ................................................................................................ v

Statement of the Case............................................................................................. vi

Issue Presented: ..................................................................................................... vii

         Whether the trial court committed reversible error when it granted
         Dollery’s third motion for abatement when 1) Cantu’s claim against
         Dollery was not a compulsory counterclaim; 2) granting the
         abatement effectively retroactively shortened the statute of
         limitations; and 3) and Dollery could not feasibly be joined in the
         previously filed suit.

Statement Regarding Oral Argument ................................................................... vii

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

Argument and Authorities....................................................................................... 4

         I.        Law of Dominant Jurisdiction ............................................................ 4

         II.       Cantu’s claims against Dollery are not compulsory counterclaims in
                   the declaratory judgment action ......................................................... 7

         III.      Dollery could not feasibly be joined in the declaratory judgment
                   action due to the expiration of the statute of limitations .................... 8

Conclusion .............................................................................................................. 9

Prayer ...................................................................................................................... 9

Certificate of Service ............................................................................................ 10

Certificate of Compliance ..................................................................................... 11

Certification .......................................................................................................... 12

                                                               iii
Appendix ............................................................................................................... 13




                                                             iv
                                        INDEX OF AUTHORITIES

CASES                                                                                                               PAGE(S)

Ex parte Ward, 560 S.W.2d 660, 662 (Tex. Crim. App. 1978) ............................. 5

Gordon v. Jones, 196 S.W.3d 376, 382-83 (Tex. App.--Houston [1st Dist.]
2006, no pet.) .......................................................................................................... 4

Goss v. City of Houston, 391 S.W.3d 168, 173 (Tex. App. Houston [1st Dist.]
2012) ...................................................................................................................... 5

In re United Servs. Auto. Ass'n, 307 S.W.3d 299, 53 Tex. Sup. Ct. J. 485, 488,
2010 Tex. LEXIS 282, 2010 WL 1136314, at *3 (Tex. 2010) .............................. 4

Ingersoll-Rand Co. v. Valero Energy Corp. 997 S.W.2d 203, 207
(Tex. 1999) ......................................................................................................... 6, 7

Starnes v. Holloway, 779 S.W.2d 86, 94 (Tex.App.–Dallas 1989,
writ denied) ........................................................................................................ 5, 7

Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 90, 118 S. Ct. 1003,
140 L. Ed. 2d 210 (1998) ....................................................................................... 4

Tex. Ass'n of Bus.v. Texas Air Control Bd., 852 S.W.2d 440 (Tex. 1993)............. 4

V.D. Anderson Co. v. Young, 128 Tex. 631, 636-637 (Tex. 1937) ........................ 5

Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988) .................. 4, 5, 6




                                                               v
                        STATEMENT OF THE CASE


Nature of the underlying proceeding:        The lawsuit giving rise to this appeal
                                            involves the claims of Rose Ena Cantu
                                            (“Cantu”) against Southern Insurance
                                            Company (“Southern”) and Steve
                                            Dollery stemming from a home
                                            insurance claim for damage resulting
                                            from the 2011 Bastrop County wildfires.
                                            Cantu originally filed suit in Bastrop
                                            district court, but has nonsuited and re-
                                            filed in a multi-Plaintiff case in Dallas
                                            County. Southern invoked the appraisal
                                            provision of its policy and the parties
                                            completed appraisal. . Following
                                            Cantu’s nonsuit. but before Cantu had
                                            refiled in Dallas County, Southern filed
                                            a declaratory judgment action in the
                                            335th District Court in Bastrop on the
                                            contract defense of payment of the
                                            appraisal. Southern and Dollery filed a
                                            motion to abate the case in Dallas filed
                                            by Cantu in favor of the suit filed by
                                            Southern. The Dallas Court granted the
                                            motion for Southern, but denied it for
                                            Dollery, thereby keeping Cantu’s claims
                                            against Dollery in Dallas County. The
                                            Dallas Court granted a motion to
                                            transfer the remaining Plaintiffs in the
                                            Dallas suit to the 21st District Court in
                                            Bastrop. Dollery again sought for
                                            abatement of Cantu’s claims in favor of
                                            Southern’s Declaratory Judgment in the
                                            335th from the Dallas Court. The Court
                                            denied the abatement. The declaratory
                                            judgment action in the 335th resolved
                                            and moved into appeal. After the
                                            resolution of the action in the 335th,
                                            Dollery once again moved for

                                       vi
                                              abatement and this time for dismissal,
                                              this time in the 21st District Court in
                                              Bastrop, based on the inability for
                                              Dollery to be added to the 335th due to
                                              the resolution of the trial court case. The
                                              21st District Court granted the motion.
                                              The dismissal order is the subject of this
                                              appeal.

Action complained of:                         The dismissal of Cantu’s claims against
                                              Dollery based on the granting of his
                                              third motion to abate after the first two
                                              were denied on the same grounds.


                                ISSUE PRESENTED

      Whether the trial court committed reversible error when it granted Dollery’s

third motion for abatement when 1) Cantu’s claim against Dollery was not a

compulsory counterclaim; 2) granting the abatement effectively retroactively

shortened the statute of limitations; and 3) and Dollery could not feasibly be

joined in the previously filed suit.


                  STATEMENT REGARDING ORAL ARGUMENT

      Appellants believe that oral argument is necessary. Appellants request oral

argument in this matter so that Appellants may address any questions or concerns

that this Court may have with regard to this original proceeding and the underlying

lawsuit.




                                        vii
TO THE HONORABLE THIRTEENTH COURT OF APPEALS:

      COMES NOW, Rose Ena Cantu, and would respectfully show the Court as

follows:

                            STATEMENT OF FACTS

      This appeal arises out of the granting of a motion to dismiss based on the

granting of Dollery’s third motion to abate Cantu’s claims against him. CR 666.

The lawsuit giving rise to this appeal involves the claims of Rose Ena Cantu

(“Cantu”) against Southern Insurance Company (“Southern”) for breach of

contract and DTPA/Insurance Code violations and Steve Dollery for breach of his

duties under his licensed stemming from a home insurance claim for damage

resulting from the 2011 Bastrop County wildfires. CR7-212.

      Cantu originally filed suit in Bastrop district court against: Southern

Insurance Company, for their breach of the insurance contract and their violations

of the DTPA and Insurance Code; and Steve Dollery for his failure to conduct his

duties as a licensed adjuster and his violations of the DTPA and Insurance Code.

Southern invoked the appraisal provision of its policy and the parties completed

appraisal. Id.

      After the appraisal, Cantu filed suit in Dallas as part of a multi-plaintiff case.

Cantu filed the same claims against Dollery as she had in Bastrop, but filed claims

against Southern for their pre-appraisal conduct. Id. Also following the appraisal,

                                           1
and unbeknownst to Cantu, Southern filed a declaratory judgment action in Dallas

in the 335th District Court stating that: 1) the appraisal award was binding as to the

amount of the loss; 2) Southern’s payment of the appraisal award fulfilled its

obligations under the insurance contract; and 3) because Southern was not in

breach of the insurance contract, they were necessarily also not in violation of the

DTPA and Insurance Code. Tab 1, Declaratory Judgment Action. The Declaratory

Judgment action did not seek any judicial findings related to the inspection

conducted by Dollery on Cantu’s residence, Dollery’s duties as an adjuster, or

Dollery’s violations of the DTPA. Dollery was not a party to the Declaratory

Judgment action. Id.

      After filing suit and requesting service in Dallas, Cantu was served with the

Declaratory Judgment action filed by Southern. At the time that Cantu filed suit,

Steve Dollery was not, and has not since been, a party to any other action involving

Cantu in any Court. Dollery was served with Cantu’s action in Dallas prior to the

time Cantu timely answered the in the Declaratory Judgment action. Id. CR7-212.

      After the statute of limitations passed on Cantu’s claims against Dollery,

Southern and Dollery filed a motion to severe and abate the case in Dallas filed by

Cantu in favor of the declaratory judgment filed by Southern. CR 216-220. Cantu

argued, among other things, that her claims against Dollery were distinct from the

declaratory judgment because the declaratory judgment was based on a contract

                                          2
defense, while Cantu’s claims against Dollery were based on his personal liability

under his license for actions he personally took. Cantu explained that Dollery was

not a party to the contract, was not a necessary party in the declaratory judgment

action, and that the statute of limitations prevents Dollery from being added to the

Declaratory Judgment action. Tab 2, Cantu’s Response to Defendants’ Motion.

      On November 5, 2013, the Dallas Court severed Cantu’s claims against

Steve Dollery and Cantu’s claims against Southern Insurance Company from each

other and from the claims brought by the other Plaintiffs. After the severance, but

before Cantu sought a new cause number, the Dallas court transferred the

remaining Plaintiffs claims to the 21st District Court in Bastrop. CR221-327. The

Dallas Court abated the claims against Southern Insurance based on the dominant

jurisdiction of the Bastrop Court for the Declaratory Judgment action. CR 659. The

Dallas Court did not abate Cantu’s claims against Steve Dollery. Id. After Cantu

sought the deposition of Steve Dollery, Dollery filed a motion to re-urge his

Dominant Jurisdiction argument. CR221-327. He asserted the same grounds

previously discussed and added the argument that the case had been transferred to

the 21st District Court because it was transferred before the filing fee was paid. Id.

      The Dallas Court abated the case in favor of the 21 st District Court, but not

in favor of the Declaratory Judgment action. The declaratory judgment action in

the 335th resolved and moved into appeal. After the resolution of the action in the

                                           3
335th, Dollery once again moved for abatement based on the same dominant

jurisdiction argument that he had presented twice before. This time, the 21st

District Court granted the motion to abate and, because the declaratory judgment

action was in appeal and Dollery couldn’t be added, dismissed Cantu’s claims

against Dollery. CR 666.

                     ARGUMENT AND AUTHORITIES

I.    The Law of Dominant Jurisdiction

      Despite its name, “dominant jurisdiction” is not about jurisdiction at all; it

provides principles related to venue. Gordon v. Jones, 196 S.W.3d 376, 382-83

(Tex. App.--Houston [1st Dist.] 2006, no pet.)(“[W]e note that the concept of

dominant jurisdiction is not jurisdictional in the sense of subject-matter

jurisdiction.”); Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988)

(Dominant jurisdiction is waivable, whereas subject-matter jurisdiction is not.)

Tex. Ass'n of Bus.v. Texas Air Control Bd., 852 S.W.2d at 443-44; Steel Co. v.

Citizens for a Better Env't, 523 U.S. 83, 90, 118 S. Ct. 1003, 1010, 140 L. Ed. 2d

210 (1998) (“Subject matter jurisdiction is never presumed and cannot be

waived.”). Dominant jurisdiction is question of appropriate venue based on

principles of comity, convenience, and necessity. Id.; See generally In re United

Servs. Auto. Ass'n, 307 S.W.3d 299, 53 Tex. Sup. Ct. J. 485, 488, 2010 Tex.

LEXIS 282, 2010 WL 1136314, at *3 (Tex. 2010). The dominant-jurisdiction rule

                                         4
seeks to prevent the filing of successive lawsuits concerning the same subject

matter by the same parties already involved. Starnes v. Holloway, 779 S.W.2d 86,

94 (Tex.App.–Dallas 1989, writ denied).

      When deciding whether or not to grant a plea in abatement on the ground of

dominant jurisdiction, courts make two determinations: 1) does dominant

jurisdiction exist in another court; and 2) does an exception to dominant

jurisdiction apply. Wyatt v. Shaw, 760 S.W.2d 245, 247 (Tex. 1988); V.D.

Anderson Co. v. Young, 128 Tex. 631, 636-637 (Tex. 1937).

      Dominant Jurisdiction exists in another court if there is an inherent

interrelationship of subject matter between the lawsuits and the other suit was filed

first. Wyatt v. Shaw, 760 S.W.2d 245, 247 (Tex. 1988). An inherent

interrelationship is identified by looking to the rules governing persons to be

joined, if feasible, and the compulsory counterclaim rule.

      Regarding the rules governing persons to be joined if feasible: the statute of

limitations is relevant to the determination of jurisdiction for the court. Ex parte

Ward, 560 S.W.2d 660, 662 (Tex. Crim. App. 1978) (We hold that the indictment

shows on its face that it is barred by limitation. The indictment is thus void and

provides the trial court with no jurisdiction over the appellant); Goss v. City of

Houston, 391 S.W.3d 168, 173 (Tex. App. Houston 1st Dist. 2012) (holding that

statute of limitations is jurisdictional in a suit against a governmental entity and

                                          5
failure to comply with jurisdictional requirement deprived court of power to act).

The statute of limitations for actions against an insurance adjuster for failure to

fulfill duties as a licensed adjuster and for violations of the DTPA and Insurance

Code is two years from the time the actions made basis of the suit occurred. Tex.

Bus. & Com. Code 17.565.

      Regarding the compulsory counterclaim rule: The Supreme Court of Texas

explained that “a counterclaim is compulsory if: (1) it is within the jurisdiction of

the court; (2) it is not at the time of filing the answer the subject of a pending

action; (3) the action is mature and owned by the pleader at the time of filing the

answer; (4) it arises out of the transaction or occurrence that is the subject matter of

the opposing party's claim; (5) it is against an opposing party in the same capacity;

and (6) it does not require for its adjudication the presence of third parties over

whom the court cannot acquire jurisdiction.” Wyatt v. Shaw Plumbing Co., 760

S.W.2d at 247; see also Ingersoll-Rand Co. v. Valero Energy Corp. 997 S.W.2d

203, 207 (Tex. 1999).

      The three exceptions to dominant jurisdiction, once established are: (1)

Conduct by a party that estops him from asserting prior active jurisdiction; (2) lack

of persons to be joined if feasible, or the power to bring them before the court; and

(3) lack of intent to prosecute the first lawsuit. Wyatt, 760 S.W.2d at 248.



                                           6
II.   Cantu’s claims against Dollery were not compulsory counterclaims in

      the declaratory judgment action.

      In his motion to abate and two subsequent motions to reconsider, Dollery

argued that a declaratory judgment action filed by Southern Insurance Company

over a contract defense has the power to deprive the Dallas and Bastrop Courts of

jurisdiction to hear claims regarding the pre-appraisal conduct of Steve Dollery.

However, the Cantu’s claims against Dollery were not compulsory counter-claims

in the Declaratory Judgment action.

      The appellate court in Starnes articulates and requires a right Defendant

Dollery cannot claim: Dollery is not a party to the declaratory judgment action, he

was not a party to the contract that was the subject of the declaratory judgment

action, he is not in jeopardy of liability in the declaratory judgment action, and he

cannot be bound by the declaratory judgment action. Dollery’s obligation to Cantu

turns on his own personal conduct undertaken under his own license from the

Texas Department of Insurance, and statues that regulate his conduct, rather than

the obligations of Southern under its contract with Cantu.

      Additionally, “[A] counterclaim is compulsory only if … it is not at the time

of filing the answer the subject of a pending action[.]” Ingersoll-Rand Co. v.

Valero Energy Corp. 997 S.W.2d 203, 207 (Tex. 1999). When an Answer was

first due in the Declaratory Judgment action, Cantu’s case against Dollery was not

                                          7
only filed, but service had been effected on Dollery. Cantu had thus successfully

sued Dollery in Dallas prior the answer in Declaratory Judgment action.

III.   Dollery could not feasibly be joined in the declaratory judgment action

       due to the expiration of the statute of limitations.

       Dollery cannot be a “person to be joined if feasible” in the declaratory

judgment action if the only action available to the 335th District Court is to dismiss

all claims against him under a statute of limitations defense, which Defendants

made a point of refusing to waive when asked about it in open court last year.

Nothing in Wyatt v. Shaw requires a futile transfer. Moreover, the posture of the

case in Bastrop County does not allow the addition of Dollery: a final judgment in

that case is on appeal to the Third Court of Appeals.

       Cantu filed suit and served Dollery before the statute of limitations ran on

her claims against him. By the time that Dollery filed his first motion to abate, the

statute of limitations had run on Cantu’s claims against him. Dollery sought

abatement, not so that the claims against him could proceed in a different court, but

so that the claims against him would be dismissed in a different court. Abatement

in this context, effectively retroactively, shortens the statute of limitations and bars

Cantu’s otherwise properly filed claims.




                                           8
                                    CONCLUSION

      The 335th District Court did not have dominant jurisdiction over Cantu’s

claims against Dollery because Dollery’s claims are not a compulsory

counterclaim due to Dollery’s lack of connection to the legal remedies sought in

the Declaratory Judgment action and the fact that the case against him was pending

at the time the answer was due in the declaratory judgment action. Additionally,

Cantu’s claims against Dollery were barred by the statute of limitations by the time

of the abatement action which effectively retroactively shortens the statute of

limitations and prevents Dollery from being feasibly joined to the declaratory

judgment action.

                                       PRAYER

       Cantu prays this Court will reverse the order entered by the 21 st District

Court dismissing Cantu’s claims against Dollery and remand the cause back to the

21st District Court to proceed to trial.

                                               Respectfully submitted,




                                               M. Chad Gerke
                                               Texas Bar No. 24027390
                                               Robert L. Collins
                                               Texas Bar No. 04618100
                                               Audrey E. Guthrie
                                               Texas Bar No. 24083116
                                               P.O. Box 7726
                                           9
                                             Houston, Texas 77270-7726
                                             (713) 467-8884
                                             (713) 467-8883 Facsimile
                                             houstonlaw2@aol.com

                                             Christopher D. Lewis
                                             Texas Bar No. 24032546
                                             1721 West T.C. Jester Blvd
                                             Houston, Texas 77008
                                             (713) 553-4104
                                             (713) 467-8883 Facsimile



                         CERTIFICATE OF SERVICE

       As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I
certify that I have served this document on all other parties, on this 1st day of
October, 2015:

Counsel for Real Parties in Interest
Ms. Catherine L. Hanna 
Ms. Laura D. Tubbs 
Mr. Eric S. Peabody 
Hanna & Plaut, LLP 
211 East Seventh Street, Ste. 600
Austin, Texas 78701



                                             Robert L. Collins




                                        10
                      CERTIFICATE OF COMPLIANCE

          This document complies with the typeface requirements of Tex. R. App.
P. 9.4(e) because it has been prepared in a conventional typeface no smaller than
14-point for text and 12-point for footnotes. This document also complies with the
word-count limitations of Tex. R. App. P. 9.4(i), if applicable, because it contains
2,002 words, excluding any parts exempted by Tex. R. App. P. 9.4(i)(1).



                                             ____________________________
                                             Robert L. Collins




                                        11
                       NO. 03-15-00303-CV


                 IN THE COURT OF APPEALS
             FOR THE THIRD DISTRICT OF TEXAS
                         AT AUSTIN


                       ROSE ENA CANTU
                                    Appellant,

                                 V.

SOUTHERN INSURANCE COMPANY AND STEVE DOLLERY
                            Appellees,


 Appeal from the 21st Judicial District Court, Bastrop County, Texas
                  Trial Court Cause No. 053-21
                 Hon. Carson Campbell, Presiding


                            APPENDIX



Tab 1:      Declaratory Judgment Action

Tab 2:      Cantu’s Response to Defendants’ Motion To Sever

Tab 3:      Order of December 10, 2014




                                 13
TAB 1
TAB 2
                                   CAUSE NO. DC-13-07869

ROSA ENA CANTU, ROBERTA                       §           IN THE DISTRICT COURT
GODWARD, GAIL SCHIAVONE-                      §
FRANKE, WILMA MAYES, ADELE                    §
AND DON THORNE, and ALEXIS                    §
AND WILLIAM CHRISAN                           §
              Plaintiffs,                     §
                                              §
VS.                                           §           193rd JUDICIAL DISTRICT
                                              §
SOUTHERN INSURANCE                            §
COMPANY, ALLSTATE TEXAS                       §
LLOYD’S, INC., STEVE DOLLERY,                 §
TY HARLAN FLETCHER, and                       §
JOSH RANDALL                                  §
           Defendants.                        §           DALLAS COUNTY, T E X A S


      PLAINTIFFS’ RESPONSE TO DEFENDANT DOLLERY’S AND SOUTHERN’S
                       MOTIONS TO ABATE AND SEVER

TO THE HONORABLE JUDGE OF SAID COURT:

       COME NOW Rosa Ena Cantu, Roberta Godward, Gail Schiavone-Franke, Wilma Mayes,

Adele and Don Thorne, and Alexis and William Chrisan (hereinafter “Plaintiffs”) and file this

Response to Defendant Dollery’s and Southern’s Motions to Abate and Sever, and would

respectfully show the court as follows:

                                          I. Governing Law

       Collectively, the Defendants in this case claim a right, enforceable by mandamus, to

pretrial severance of every Plaintiff’s claims in this case from the claims of any other Plaintiff.

This is not the law of Texas. Rule 174 specifically provides that:

       When actions involving a common question of law or fact are pending before the
       court, it may order a joint hearing or trial of any or all the matters in issue in the
       actions; it may order all the actions consolidated; and it may make such orders
       concerning proceedings therein as may tend to avoid unnecessary costs or delay.
       Rule 174(a), Texas Rules of Civil Procedure

                                                  1
       It is worth noting that the discretion of the judge regarding consolidation for discovery

may be based on “common questions of law or fact”, meaning that identical contracts are not

necessary, nor identical damages. The standard of care owed by Defendants under §541 Tex. Ins.

Code, the Deceptive Trade Practices Act, and the common law of bad-faith claims adjustment are

common issues across all cases, and involve common facts regarding the extent of investigation

made in connection with each claim as well as common issues of law regarding whether the

provisions of §542 of the Texas Insurance Code affect whether conduct of Defendants is

unconscionable under the Deceptive Trade Practice Act.

       Defendants cite a Corpus Christi case that required severance for trial of several claims

involving a common contract. Assuming for the sake of argument that the case is good law in

Dallas County, it has no impact on the question whether the Court should require the parties to

conduct one deposition of the expert witnesses common to all claims, one deposition of each of

the adjusters common across multiple claims, and a common scope of discovery across claims as

approved by the Court after considering the objections raised to each party’s discovery requests.

Rule 174 permits cases to be tried separately even when convenience or judicial efficiency

supports, as here, the consolidation of certain pretrial matters:

       The court in furtherance of convenience or to avoid prejudice may order a
       separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of
       any separate issue or of any number of claims, cross-claims, counterclaims, third-
       party claims, or issues.
       Rule 174(b), Texas Rules of Civil Procedure

       Whether the issues for trial turn out to raise an issue of unfairness or prejudice to

Defendants in the event of a single trial may not be clear until the discovery and pretrial motions

place the Court in a position of assessing the parties’ claims about what will and will not be an



                                                  2
issue for trial. Since the Court can always order separate trials under Rule 174(b), there is no

need to sever the claims at a stage that would prohibit the exercise of discretion urged by Rule

174(a). Moreover, even should the Court agree that severance is proper before trial, there is no

reason to sever the cases without immediately entering an Order consolidating them for pretrial

matters and discovery.

       Common issues of law and fact predominate in these cases. Even if there is some risk that

a single trial would work prejudice to a party, there is no such risk of prejudice for a single

guiding hand at the pretrial phase of the claims brought herein.

                                     II.     Common Issues

       Movant Defendants assert that “[t]there are no common issues of law or fact between

Plaintiff Cantu’s causes of action against the SIC Defendants and the Allstate Plaintiffs’ causes

of action against the Allstate Defendants.” Movant Defendants’ Motion at p.5. Plaintiffs aver

that this is not only inaccurate, but that the inaccuracy can and should be demonstrated by

discovery available more efficiently here where discovery can be aggregated across all relevant

claims and parties than it can be had in the six or more cases the Defendants seem to urge this

Court should create even before discovery is done. Even if there exist grounds on which certain

Defendants’ cases should be tried separately, it is in the interest of justice and consistent with

Rule 174 that they remain joined at least for the discovery and issue-dispositive motions that will

inform the Court what claims and defenses will in fact be tried, which will inform the Court

whether severance for trial is warranted.

       Common issues of law and fact are extensive, but include at least the following:

       (1)     the meaning of “smoke” under the insurance policies, each of which expressly



                                                 3
      includes “smoke” as a covered peril (See Exhibits A-1, A-2, A-3, A-4, A-5, and

      A-6 to Plaintiff’s Original Petition);

(2)   whether the meaning of “smoke” under the above-referenced insurance policies

      should be decided early by the Court as a matter of law, established by judicial

      notice in advance of trial, determined only when the parties present competing

      jury charges, or left undefined and given to the jury;

(3)   the meaning of the terms loss and damage in connection with covered smoke

      perils under each of the above-referenced policies;

(4)   whether the above-referenced policies cover the cost of remediating smoke-

      affected property to the state enjoyed by policyholders prior to a loss caused by

      smoke damage; or

(5)   the duty of an insurance adjuster under §541 of the Texas Insurance Code to

      conduct an appropriate investigation of a policyholder’s claim in the context of a

      claim for a loss caused by smoke damage;

(6)   the duty of an insurance adjuster under §541 of the Texas Insurance Code to

      provide accurate information to a policyholder regarding the policyholder’s

      coverage for damage caused by “smoke” in the context of a loss caused by smoke

      damage;

(7)   the duty of an insurer under §541 of the Texas Insurance Code to provide training

      and oversight to persons it designates to discharge its duty to reasonably

      investigate the extent of smoke damage following a claim for benefits;




                                         4
(8)    whether the duty imposed on an adjuster under §541 is informed by the terms of

       the policyholder’s specific contract or the policyholder’s rights under §542 of the

       Texas Insurance Code;

(9)    whether the meaning of an “unconscionable” act or practice under the Deceptive

       Trade Practices Act is informed by the terms of the policyholder’s specific

       contract or the policyholder’s rights under §542 of the Texas Insurance Code;

(10)   whether the test results obtained by each of the Plaintiffs (see Exhibits B-1a

       through B6 to Plaintiffs’ Original Petition) evidence smoke damage within the

       dwellings insured by the above-referenced policies;

(11)   whether the health effects reported by Plaintiffs evidence smoke damage within

       the dwellings insured by the above-referenced policies;

(12)   whether Defendants’ financial relationships with their recommended vendors

       affects the scope of those claims approved for partial payment by the insurers or

       the fairness of the estimates for the work approved for payment by Defendants;

(13)   whether the facts developed through discovery evidence that Mr. Dollery’s

       conduct across the insurers whose policyholders’ claims he was assigned is part of

       a conspiracy between the himself and the involved insurers regarding the

       underpayment of claims and/or the non-performance of obligations owed under

       Texas law;

(14)   whether facts developed through discovery evidence that insurer defendants,

       though acting through various separate adjusters, have formed a conspiracy

       between themselves or between themselves and their adjusters regarding the



                                        5
               underpayment of claims and/or the non-performance of obligations owed under

               Texas law;

       (15)    the applicability to adjusters of defenses available in contract but not in tort;

       (16)    the locations of the fire and the locations of the smoke during and after the

               Bastrop County wildfires of 2011;

       (17)    the extent to which smoke components are susceptible to objective analysis;

       (18)    the effect of smoke components on human occupants of dwellings in which tests

               were taken as reflected in Exhibits B-1a through B-6 from the Original Petition,

               and any other testing that may be completed before the trial of this matter, and the

               relevance of those effects on whether property so affected has suffered “damage”

               from smoke components or constitutes a “loss” within the meaning of the

               insurance policies in Exhibits A-1, A-2, A-3, A-4, A-5, and A-6 to the Original

               Petition; and

       (19)    the existence of harm caused by delay in proper investigation and payment of

               insured policyholders’ claims for smoke damage.

       The similarities in the claims and defenses and the fundamental facts regarding the effects

of wildfire smoke, together with the fact that the exact same witnesses will be required for parties

on both sides of claims against each insurer and against Mr. Dollery, make clear that judicial

efficiency and the purposes of Rule 40 and Rule 174 that the cases should remain joined at least

through the discovery phase of the case.

                       III. Inconsistent Results Sought In Similar Cases

       Defendants’ prayer for relief – which is purportedly based on a contract defense raised by



                                                  6
Southern in a declaratory judgment action filed before Judge Corbitt following Plaintiffs’ nonsuit

of the case pending before Judge Campbell – asserts that Judge Corbitt – rather than Judge

Campbell – has dominant jurisdiction over the contract claims at issue between Plaintiff Cantu

and Defendant Southern Insurance Co. Nothing in that case implicates the noncontractual claims

pending here between Plaintiff Cantu and Defendant Steve Dollery, but Defendants’ position in

this case requires them to take a position diametrically opposite that taken by their same counsel

in the Barrentine matter also pending before this Court in Cause No. DC-13-04453. In that case,

counsel for Defendants urge that the Bastrop nonsuit was ineffective to close a case in which

appraisal had been demanded. Here, they argue they argue that the Bastrop nonsuit was effective

in a case in which appraisal had been demanded and that dominant jurisdiction exists where

Defendant subsequently filed a new suit before a different Bastrop judge while no order

dismissing the original case was on file. The taking by one firm of diametrically opposite

positions with respect to the law is bad enough, without taking those inconsistent positions

before the same judge.

       That is not the end of the inconsistency, however.

       The Bastrop County declaratory judgment action described by Southern seeks to enforce

an “appraisal” umpired by Don Wittig. However, when Southern requested an umpire

appointment in September of 2012, it was not Don Wittig who was appointed umpire. In

September of 2012, Judge Flennicken appointed Claude Ducloux umpire in the Cantu claim. See

Ex. B-1. It was not until Judge Flennicken was no longer on the bench that Southern obtained

from the newly-sitting Judge Campbell a purported Order reciting that Don Wittig was appointed

umpire in the Cantu claim. The January 2013 Order was entered with no pending motion, was



                                                7
based on no authority, and was considered without notice to Plaintiff’s counsel that the Court

would even entertain an umpire removal request, much less given an opportunity to present a

response. See Ex. B-2. The January Order was also entered without evidence, or a record.

        Claude Ducloux was plainly appointed in the manner described in the parties’ contract,

and because there was never any basis to remove him, Ducloux remains the umpire. However,

Judge Campbell instructed Claude Ducloux not to finish the appraisal award that was underway

when Campbell executed his purported Order in January, and Ducloux accordingly stopped work

on the Cantu appraisal then being completed. See Ex. B-3, ¶1.

        Yet, Southern’s declaratory judgment action before Corbitt, filed by the party with the

duty of good faith and fair dealing in a race to the courthouse to prevent an earlier filing in Dallas

County where it has its own offices, is predicated entirely on the enforcement of the “award”

issued by the Campbell-appointed “umpire”, despite Claude Ducloux being validly appointed by

Judge Flennicken first and never having been properly removed. Although counsel for Southern

has urged before this Court in the Barrentine matter that an appraisal is easily set aside and can

be ordered re-done by a Court without any jury factfinding, these same counsel urge here that an

obviously invalid “appraisal” must be held inviolable even though conducted not by the properly-

appointed umpire, but by some interloper whose supposed authority to act as umpire is not based

in the language of the parties’ contract – or, for that matter, even any Texas law at all.

Southern’s novel position will fail, whether at summary judgment before Judge Corbitt or in the

Court of Appeals. There is no risk that Southern’s proceedings in Bastrop County will prevent

this Court from entertaining the claims against Dollery for conduct that has nothing to do with

the appraisal or its enforceability.



                                                  8
                                         IV. Conference

       Movants’ Motion includes a table that attempts to depict Plaintiffs as nonresponsive to

conference requests. As explained repeatedly to opposing counsel, including twice in writing

(see Ex. A-1 and Ex. A-2), Plaintiffs acknowledge that abatement appears appropriate at this

time as applied to the claims pending against Southern Insurance Company, and have not

objected to it. However, Plaintiffs disagree that the causes of action against Steve Dollery – who

is sued by multiple plaintiffs, and who was sued here before any Plaintiff or counsel thereof had

notice or knowledge of any action filed by Southern Insurance Co. in Bastrop County – should be

abated or severed. No Defendant intends litigating Dollery’s conduct in connection with any

Plaintiff in any other forum.

       The Motion of Southern Insurance Co. and Steve Dollery defines the term “Southern

Insurance Parties” to mean Southern Insurance Company and Steve Dollery. Movant Defendants

seek the exact same relief for both parties, even though the claims against them are legally

distinct, and even though Steve Dollery has an independent duty under his license. The Texas

Insurance Code violations, Deceptive Trade Practice Act violations, and bad faith torts

committed by Mr. Dollery against Plaintiffs could have been brought without joining Plaintiffs’

insurers, and contract defenses of Plaintiffs’ insurers are without power to prevent statutory

actions or tort claims against adjusters such as Mr. Dollery. Proof of the contract defenses raised

by Southern Insurance in Bastrop County will be based on factors that go to the enforceability of

a purported appraisal, the whole of which was conducted when Mr. Dollery’s wrongful conduct

had already been completed, which the appraisal had no power to cure, and for which suit was

ripe independently of appraisal or its results. Instead of dividing the cases into groups based on



                                                9
which parties violated §541 of the Texas Insurance Code and the contracts, and which parties

violated only §541 and the DTPA, Defendants seek numerous cases in which a cross section of

every cause of action common to all cases appears separately in each case. This isn’t judicial

efficiency. It is a waste of public and judicial resources.

                                          CONCLUSION

       This Court should not sever the cases as requested by Dollery and Southern Insurance

Company. Pending the outcome of Southern’s doomed declaratory action bid to support the false

appraisal in Bastrop County, claims against Southern may properly be abated.                However,

decisions regarding the severance of any case should be postponed until the discovery all these

claims have in common has been completed and the Court can make an informed decision

regarding the merits of severance for trial under Rule 174.

       WHEREFORE, Plaintiffs pray that Defendants’ Motion be denied, or that consideration

of Defendants’ Motion be withheld until such time as discovery is complete and the Court is in a

position to ascertain whether it is appropriate to sever any of the claims for purposes of trial.

                                               Respectfully submitted,




                                               _________________________________
                                               Robert L. Collins
                                               Texas Bar No. 04618100
                                               Audrey Guthrie
                                               Texas Bar No. 24083116
                                               P.O. Box 7726
                                               Houston, Texas 77270-7726
                                               (713) 467-8884
                                               (713) 467-8883 Facsimile

                                               Marc C. Lenahan
                                               State Bar No. 24007546
                                               Law@Lenahan.com
                                                  10
P. Wes Black
State Bar No. 24009904
Wes@Lenahan.com
M. Nathan Barbera
State Bar No. 24006794
Nathan@Lenahan.com
Kathleen M. Kearney
State Bar No. 24053298
Kathleen@Lenahan.com
LENAHAN LAW, P.L.L.C.
2655 Villa Creek, Suite 204
Dallas, Texas 75234
214.295.1008
214.295.2664 fax
888.473.2820 toll-free
888.632.7912 toll-free fax

Christopher D. Lewis
Texas Bar No. 24032546
1721 West T.C. Jester Blvd.
Houston, Texas 77008
Telephone: (713) 553-4104

ATTORNEYS FOR PLAINTIFFS




  11
                               CERTIFICATE OF SERVICE

        I certify that on the 23rd day of October, 2013, a true and correct copy of the foregoing
Plaintiffs’ Response to Defendants’ Motion to Abate and Sever was served by certified mail,
return receipt requested, hand delivery, e-service and/or facsimile to:

       Catherine L. Hanna
       Laura D. Tubbs
       Hanna & Plaut, LLP
       211 East Seventh Street, Ste. 600
       Austin, Texas 78701
       Facsimile (512) 472-0205

       Darrell S. Cockroft
       Thompson, Coe, Cousins & Irons, LLP
       710 Brazos, Suite 1500
       Austin, Texas 78701
       Facsimile (512) 708-8777




                                            ____________________________
                                            Robert L. Collins




                                               12
TAB 3
