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 21 st 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 COU RT 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 21 st

District Court, the 193 rd

District Court, the 335 th

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- 2

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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 193 rd
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, ob viously, 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 ap pealed case. Following Plaintiff’s Original Petition in the 193 rd District Court (Cause No. DC

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- 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 193 rd 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
C ompany and Steve Dollery . Ex. C, p.2. The 193 rd District Court assigned Rose Ena- 3

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

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- 10431

. Although the 193 rd 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

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- 07869

– Allstate’s and its adjusters’ Motio n to Transfer venue

. That case was transferred to the 21 st District Court in Bastrop, Texas and assigned the C ause No. 29,358.
3. On February 4, 2015, Insurance Company and Appraiser served a Countercl aim 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 21 st 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 193 rd District Court , and consequently not found with the materials in the case that included Insurance Company . Ex. C. There is now pending before the 21 st
District Court a Motion to Sever the claims dismissed in the Order of Dec ember 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 In surance 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 disp ute 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- 5

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Appe al 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 requ est s 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
A TTORNEY S FOR A PPELLANT , R OSE E NA C ANTU- 6

- 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- 7

- 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 23 rd 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 DCAUSE NO. 29,358

ROSE ENA CANTU, ROBERTAGODWARD, 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 Company l 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 335 th 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 335 th 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 Counterclaim541.153; 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 21 st 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 CounterclaimIn 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 CounterclaimEric 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 4 th day 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