                                                                                                       ACCEPTED
                                                                                                  03-15-00017-CV
                                                                                                         4250128
                                                                                        THIRD COURT OF APPEALS
                                                                                                   AUSTIN, TEXAS
                                                                                             2/23/2015 3:10:57 PM
                                                                                                JEFFREY D. KYLE
                                                                                                           CLERK
                                  NO. 03-15-00017-CV

                                                              FILED IN
                                                       3rd COURT OF APPEALS
                           IN THE COURT OF APPEALS         AUSTIN, TEXAS
                       FOR THE THIRD DISTRICT OF TEXAS 2/23/2015 3:10:57 PM
                                   AT AUSTIN             JEFFREY D. KYLE
                                                               Clerk


                           Rose Ena Cantu, Appellant
                                     vs.
            Southern Insurance Company and Steve Dollery, Appellees


          Appeal from the 21st Judicial District Court, Bastrop County, Texas
                            Trial Court Cause No. 29,358
                          Hon. Carson Campbell, Presiding


       APPELLANT’S UNOPPOSED MOTION TO DISMISS APPEAL


TO THE HONORABLE COURT OF APPEALS:

       Appellant, Rose Ena Cantu, submits this unopposed Motion to Dismiss

Appeal pursuant to Rule 42.1 of the Texas Rules of Appellate Procedure. Upon

conference with counsel for Appellees, they are unopposed to the dismissal of this

appeal.

                                       Background

       1.     Litigation between Rose Ena Cantu and Southern Insurance Company has

occurred in the 21st District Court, the 193rd District Court, the 335th District Court, and in

this Court. Trial courts have assigned some five different cause numbers to controversies
involving Mrs. Cantu and Insurance Company (one court assigned two due to a

severance from its initial case), some of which also involve Adjuster. The first

counterclaim appearing in Plaintiff’s case file for litigation against Southern Insurance

Company and Dollery following their severance from the original litigation in the 193rd

District Court was Defendants’ filing of February 4, 2015, denominated “Defendants

Southern Insurance Company’s and Steve Dollery’s Second Amended Answer and

Counterclaim”. This was, obviously, not present on December 10, 2014, when the

Honorable Judge Carson Campbell granted Defendant Southern Insurance Company’s

and Steve Dollery’s Plea in Abatement, Motion to Dismiss and Motion to Sever and

signed an Order to that effect – dismissing all Ms. Cantu’s claims. Two different lawyers

examined the file, found no counterclaim in it, and agreed that the Order disposed of all

claims and parties to the severed case. Appeal was taken.

      2.     Exhibit A shows the contents of Plaintiff’s file of the appealed case.

Following Plaintiff’s Original Petition in the 193rd District Court (Cause No. DC-13-

07869), Defendants Southern Insurance Company (“Insurance Company”) and Steve

Dollery (“Adjuster”) filed an Answer on August 16, 2013. That Answer included no

counterclaim. Ex. B. On November 5, 2013, the 193rd District Court entered an Order

severing Cantu’s claims from other plaintiffs’ claims in that case. Ex. C. The Order

required the severed case to be captioned Rose Ena Cantu v. Southern Insurance

Company and Steve Dollery. Ex. C, p.2. The 193rd District Court assigned Rose Ena



                                           -2-
Cantu v. Southern Insurance Company and Steve Dollery the cause number DC-14-

10431.     Although the 193rd District Court did not grant Insurance Company’s or

Adjuster’s Motion to Transfer Venue, it did grant – following Insurance Company’s and

Adjuster’s severance from their case, but before any action had been taken to correct or

amend the caption in Cause No. DC-13-07869 – Allstate’s and its adjusters’ Motion to

Transfer venue. That case was transferred to the 21st District Court in Bastrop, Texas and

assigned the Cause No. 29,358.

      3.      On February 4, 2015, Insurance Company and Appraiser served a

Counterclaim on Ms. Cantu.       See Exs. A and D.        She was unaware of a prior

counterclaim. Upon service of Insurance Company’s and Adjuster’s Motion seeking fees

in this Court, counsel for Ms. Cantu reviewed movants’ exhibits and saw that Adjuster

had made a counterclaim against Ms. Cantu on November 17, 2014 in Cause No. 29,358

before the 21st District Court. When served on Ms. Cantu originally, it had been filed

with the materials in the Allstate case from which Insurance Company’s case was

severed by the 193rd District Court, and consequently not found with the materials in the

case that included Insurance Company. Ex. C. There is now pending before the 21st

District Court a Motion to Sever the claims dismissed in the Order of December 10,

2014; that Motion is set to be heard March 4, 2015. If granted, it would render the

December 10, 2015 Order appealable.




                                           -3-
                                     Governing Law

       4.     Premature appellate filings are not per se abusive as intimated by Insurance

Company’s and Adjuster.        The Texas Rules of Appellate Procedure contain two

provisions expressly addressing premature appellate filings.          “In a civil case, a

prematurely filed notice of appeal is effective and deemed filed on the day of, but after,

the event that begins the period for perfecting the appeal.” Rule 27.1(a), Tex. R. App. P.

Moreover, “[t]he appellate court may treat actions taken before an appealable order is

signed as relating to an appeal of that order and give them effect as if they had been taken

after the order was signed.” Rule 27.2, Tex. R. App. P.

       5.     Appellants are free to request dismissal by Motion. Rule 42.1(a)(1), Tex.

R. App. P. Since the dispute over fees is likely to require counsel to spend more time and

expend more costs and require their clients to incur more fees than simply re-filing the

inadvertently premature Notice of Appeal following the date the underlying matter

becomes appealable, Ms. Cantu prefers to dismiss and later re-file this appeal than to

waste her time and this Court’s on a fee dispute simply to stand on Rules 27.1(a) and 27.2

to render her appeal timely.

                                 Conclusion and Prayer

       6.     Appellant’s premature Notice of Appeal was filed in the good-faith belief

that the Order from which relief was sought was a final, appealable Order and that it

disposed of all claims and all parties, and the Rules provide that this premature Notice of



                                            -4-
Appeal should be deemed filed as soon as the subject Order does, in fact, become

appealable. However, in the interest of preventing unnecessary disputes, Appellant has

voluntarily filed a Motion to Dismiss the instant appeal so that an appeal can be taken at a

later time when it is unlikely to generate unnecessary, delaying, and cost-generating

controversy unrelated to its merits. The Court should grant the Motion, which is

unopposed.

       WHEREFORE, PREMISES CONSIDERED, Appellant Rose Ena Cantu

respectfully requests that her appeal be dismissed by her request, and for such other and

further relief to which is may be justly entitled.

                                                     Respectfully submitted,


                                                     __________________________
                                                     ROBERT L. COLLINS
                                                     Texas Bar No. 04618100
                                                     Audrey Guthrie
                                                     Texas Bar No. 24083116
                                                     P.O. Box 7726
                                                     Houston, TX 77270
                                                     Telephone: (713) 467-8884
                                                     Fax: (713) 467-8883
                                                     E-mail: HoustonLaw2@aol.com

                                                     CHRISTOPHER D. LEWIS
                                                     Texas Bar No. 24032546
                                                     1721 West T.C. Jester Blvd.
                                                     Houston, Texas 77008
                                                     E-mail: Lewis@Alumni.Duke.edu

                                                     ATTORNEYS FOR APPELLANT,
                                                     ROSE ENA CANTU

                                              -5-
                     CERTIFICATE OF COMPLIANCE

      I certify that this document was produced on a computer using Microsoft
Word and contains 1140 words, as determined by the computer software's word-
count function.



                                    ______________________________
                                    Attorney for Rose Ena Cantu
                                    Dated: February 23, 2015




                                      -6-
                         CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing instrument was
served upon the parties listed below through the Texas.gov Electronic Filing
System of the Court of Appeals for the Fifth District of Texas and/or by e-mail on
the 23rd day of February, 2015.

      Mr. Eric S. Peabody
      Ms. Catherine L. Hanna
      Hanna & Plaut, L.L.P.
      211 East Seventh Street
      Suite 600
      Austin, TX 78701



                                              ______________________________
                                              Robert L. Collins




                                        -7-
Exhibit A
Exhibit B
Exhibit C
Exhibit D
                                        CAUSE NO. 29,358

ROSE ENA CANTU, ROBERTA                                     IN THE DISTRICT COURT
GODWARD, GAIL SCHIAVONE-
FRANKE, WILMA MAYES, ADELE
AND DON THORNE, and ALEXIS
AND WILLIAM CHRISAN,
     Plaintiffs

                                                           21st JUDICIAL DISTRICT
vs.


TEXAS SOUTHERN INSURANCE
COMPANY, ALLSTATE TEXAS
LLOYD'S INC., STEVE DOLLERY,
TY HARLAN FLETCHER, and
JOSH RANDALL,
     Defendants                                            BASTROP COUNTY, TEXAS

       DEFENDANTS SOUTHERN INSURANCE COMPANY'S AND
 STEVE DOLLERY'S SECOND AMENDED ANSWER AND COUNTERCLAIM

TO THE HONORABLE JUDGE OF SAID COURT:

         COME NOW Defendants Southern Insurance Companyl and Steve Dollery and

file this Second Amended Answer and Counterclaim to Plaintiffs' Original Petition and

would respectfully show the Court the following:

                                             I.
                                       GENERAL DENIAL

        Pursuant to TEx. R. Civ. P. 92, Defendants deny each and every, all and singular,

the allegations set forth in Plaintiffs' Original Petition and demand strict proof thereof at

the final trial of this case.

                                              II.
                                     PLEA IN ABATEMENT

        This suit was transferred from Dallas District Court (Dallas Cause No. DC-13-

07869). Before Plaintiffs filed this suit in Dallas, Southern had filed a declaratory action


1 Southern   Insurance Company has been misnamed as Texas Southern Insurance Company.
against Plaintiff Rose Ena Cantu in the 335th District Court of Bastrop County regarding

her wildfire claim. See Cause No. 29,079; Southern Insurance Company v. Rose Ena

Cantu. Because that suit was filed first, the 335th District Court acquired dominant

jurisdiction over Cantu's claims against both Southern and Dollery. See Wyatt v. Shaw,

760 S.W.2d 247, 247-48 (Tex. 1988) ("When an inherent interrelation of the subject

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

granted. It is not required that the exact issues and all the parties be included in the first

action before the second is filed, provided that the claim in the first suit may be amended

to bring in all necessary and proper parties and issues.").                     Cantu never filed any

counterclaims against Southern and did not join Dollery in the declaratory action. The

Court should therefore grant the plea in abatement and dismiss Plaintiff Cantu's claims

against Southern and Dollery. See Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974)

("Any subsequent suit involving the same parties and the same controversy must be

dismissed if a party to that suit calls the second court's attention to the pendency of the

prior suit by a plea in abatement.").2

                                             III.
                                        COUNTERCLAIMS

         Frivolous Claims under the Texas Insurance Code Claims and DTPA.

         Defendants Southern and Dollery allege that Plaintiff Cantu's causes of action

under the Texas Insurance Code and Consumer Protection—Deceptive Trade Practices Act

are groundless, brought in bad faith, or brought for the purpose of harassment, so that

Defendants are entitled to their attorneys' fees and court costs. See Tex. Ins. Code §

2 Before the Dallas court transferred this cause, the court had ordered that Plaintiff Cantu's claims against
Southern and Dollery be severed and that the claims against Southern be abated. Because Cantu never paid
the fee to re-docket those claims and complete the severance, they were transferred with those of the other
Plaintiffs to this Court.
Defendants Southern Insurance Company's and Steve Dollery's                                      Page 2 of 5
Second Amended Answer and Counterclaim
541.153; Tex. Bus. & Corn. Code § 17.50(c). Before Plaintiff Cantu filed her suit in

Dallas, she had filed suit against Southern and Dollery in this Court. See Cause No.

28,370; Rose Ena Cantu v. Southern Insurance Company and Steve A. Dollery, In the 21st

Judicial District Court, Bastrop County, Texas. Cantu never served Dollery in that case,

even though it had been pending for approximately 18 months by the time Cantu

nonsuited. Before the nonsuit, Cantu and Southern had engaged in appraisal, Southern

had paid the appraisal award, and Southern had moved for summary judgment. Cantu

nonsuited when her response to the motion for summary judgment was due. Because the

appraisal negated Cantu's breach of contract and extra-contractual claims — including her

Insurance Code and DTPA claims — reasserting these causes of action after the appraisal

in a new suit and against a Defendant Cantu failed to serve rather than litigating the

merits of those clams in the original suit demonstrates that they were brought in an

attempt to manipulate venue and to harass. Because those claims were based on the

alleged underpayment of her claim, which the appraisal award resolved, they were also

groundless.

       Cantu also fails to distinguish Dollery's conduct from Southern's alleged failure

to properly investigate or pay the amount to which she asserts she was entitled, which

forms the only basis for her Insurance Code and DTPA claims. See Petition iftif 8a, 16-17.

These allegations do not support any independent cause of action against Defendant

Dollery, are groundless, and were bought in bad faith. Plaintiff Cantu also alleges that

Defendants "misrepresented" coverage to her even though her claims involve only a

dispute regarding the amount of loss. Plaintiff Cantu's extra-contractual Insurance Code

and DTPA claims are without basis in either fact or law.


Defendants Southern Insurance Company's and Steve Dollery's                    Page 3 of 5
Second Amended Answer and Counterclaim
       In connection with this counterclaim, Defendants seek monetary relief of

$100,000 or less and non-monetary relief declaring that Plaintiff Cantu's causes of action

under the Insurance Code and DTPA are groundless, brought in bad faith, or brought for

the purposes of harassment.

       WHEREFORE, PREMISES CONSIDERED, Defendants respectfully pray that

upon final hearing hereof, Plaintiff Cantu take nothing by her suit, that Defendants be

discharged with their costs; and that Defendants have such other and further relief to

which they may be justly entitled.

                                              Respectfully submitted,

                                              HANNA & PLAUT, L.L.P.
                                              211 East Seventh Street, Suite 600
                                              Austin, Texas 78701
                                              Telephone:    (512) 472-7700
                                              Facsimile•    (512) 472-0205

                                              By:
                                                      Catherine L. Hanna
                                                      State Bar No. 08918280
                                                      Eric S. Peabody
                                                      State Bar No. 00789539
                                                      Laura D. Tubbs
                                                      State Bar No. 24052792

                                              ATTORNEYS FOR DEFENDANTS
                                              SOUTHERN INSURANCE COMPANY
                                              AND STEVE DOLLERY




Defendants Southern Insurance Company's and Steve Dollery's                    Page 4 of 5
Second Amended Answer and Counterclaim
                             CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing document has been
forwarded by e-service and/or facsimile on this the 4th day of February 2015 to:

Via Facsimile: 713.467.8883                    Via Facsimile: 214.295.2664
Robert L. Collins                              Marc C. Lenahan
P.O. Box 7726                                  P. Wes Black
Houston, Texas 77270-7726                      M. Nathan Barbera
Attorney for Plaintiffs                        Kathleen M. Kearney
                                               Lenahan Law, P.L.L.C.
Via Facsimile: 713.467.8883                    2655 Villa Creek, Suite 204
Christopher D. Lewis                           Dallas, Texas 75234
1721 West T.C. Jester Blvd.                    Attorneys for Plaintiffs'
Houston, Texas 77008
Attorney for Plaintiffs'

Via Facsimile: 512.708.8777
Darrell S. Cockcroft
Thompson, Coe, Cousins & Irons, LLP
701 Brazos, Suite 1500
Austin, Texas 78701
Attorneys for Allstate Texas Lloyds's, Inc.,
Steve Dollery, and Ty Harlan Fletcher




                                                      Eric S. Peabody




Defendants Southern Insurance Company's and Steve Dollery's                  Page 5 of 5
Second Amended Answer and Counterclaim
