NO. 03-15-00017-CV

 

IN THE COURT OF APPEALS 

FOR THE THIRD DISTRICT OF TEXAS 

AT AUSTIN 

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 

ACCEPTED

03-15-00017-CV

4250128

THIRD COURT OF APPEALS

AUSTIN, TEXAS

2/23/2015 3:10:57 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 2/23/2015 3:10:57 PM JEFFREY D. KYLE Clerk
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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 partiesto 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 
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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.
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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 wassigned.” 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 
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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
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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 wordcount function.

______________________________

Attorney for Rose Ena Cantu

Dated: February 23, 2015
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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
Exhibit A 

Exhibit B 


Exhibit C 


Exhibit D 
CAUSE NO. 29,358 

ROSE ENA CANTU, ROBERTA 

GODWARD, GAIL SCHIAVONEFRANKE, WILMA MAYES, ADELE 

AND DON THORNE, and ALEXIS 

AND WILLIAM CHRISAN, 

Plaintiffs 

vs. 

TEXAS SOUTHERN INSURANCE 

COMPANY, ALLSTATE TEXAS 

LLOYD'S INC., STEVE DOLLERY, 

TY HARLAN FLETCHER, and 

JOSH RANDALL, 

Defendants 

IN THE DISTRICT COURT 

21st JUDICIAL DISTRICT 

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 Companyland 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 335thDistrict 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 335thDistrict 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 
Eric S. Peabody 

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 4thday of February 2015 to: 

Via Facsimile: 713.467.8883 

Robert L. Collins 

P.O. Box 7726 

Houston, Texas 77270-7726 

Attorney for Plaintiffs 

Via Facsimile: 713.467.8883 

Christopher D. Lewis 

1721 West T.C. Jester Blvd. 

Houston, Texas 77008 

Attorney for Plaintiffs' 

Via Facsimile: 214.295.2664 

Marc C. Lenahan 

P. Wes Black 

M. Nathan Barbera 

Kathleen M. Kearney 

Lenahan Law, P.L.L.C. 

2655 Villa Creek, Suite 204 

Dallas, Texas 75234 

Attorneys 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 

Defendants Southern Insurance Company's and Steve Dollery's Page 5 of 5 

Second Amended Answer and Counterclaim