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IN THE COURT OF APPEALS 

FOR THE FIRST DISTRICT OF TEXAS 

AT HOUSTON 

_______________________________ 

NO. 01-14-00907-CV 

_______________________________ 

CRUM & FORSTER SPECIALTY INSURANCE COMPANY, Appellant 

v. 

CREEKSTONE BUILDERS, INC., et al., Appellees 

________________________________________ 

On Appeal from the 215th Judicial District Court 

Harris County, Texas 

Cause No. 2014-29616 

________________________________________ 

APPELLANT CRUM & FORSTER SPECIALTY INSURANCE 

COMPANY’S MOTION FOR REHEARING AND 

MOTION FOR EN BANC RECONSIDERATION 

________________________________________ 

 

 BRIAN S. MARTIN

 Texas State Bar No. 13055350

 RODRIGO “DIEGO” GARCIA, JR. 

 Texas State Bar No. 00793778 

 CHRISTOPER H. AVERY

 Texas State Bar No. 24069321 

 THOMPSON, COE, COUSINS & IRONS, L.L.P. 

 One Riverway, Suite 1400 

 Houston, Texas 77056-1988 

 (713) 403-8210 Telephone 

 (713) 403-8299 Facsimile 

ACCEPTED

01-14-00907-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

11/30/2015 5:17:47 PM

CHRISTOPHER PRINE

CLERK

 FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 11/30/2015 5:17:47 PM CHRISTOPHER A. PRINE Clerk
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TABLE OF CONTENTS 

TABLE OF CONTENTS ............................................................................................ i

TABLE OF AUTHORITIES .................................................................................... ii

ISSUES PRESENTED ON REHEARING ............................................................... iv

RELEVANT BACKGROUND ................................................................................. 2

ARGUMENT ............................................................................................................. 3

A. The Panel Did Not Apply the Correct Factors in Its Analysis .................. 4

B. Appellees Failed to Meet Their Burden of Proof ...................................... 6

1. Private Interest Factors ..................................................................... 8

2. Public Interest Factors .................................................................... 14

CONCLUSION AND PRAYER ............................................................................. 17

 
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INDEX OF AUTHORITIES 

Baker v. Bell Helicopter Textron, Inc., 

985 S.W.2d 272 (Tex. App.—Fort Worth 1999, pet. denied) .................................. 5 

Brenham Oil & Gas, Inc. v. TGS-NOPEC Geophysical Co., 

__ S.W.3d __, 01-13-00349-CV, 2015 WL 4591788 (Tex. App.—Houston [1st 

Dist.] July 30, 2015, no pet.) ..................................................................................... 4 

Bosch v. Frost Nat’l Bank, 

__ S.W.3d __, 01-14-00191-CV, 2015 WL 4463666 (Tex. App.—Houston [1st 

Dist.] July 21, 2015, no pet.) ................................................................................... 11 

CCC Group, Inc. v. S. Cent. Cement, Ltd., 

450 S.W.3d 191 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ............................ 6 

Crum & Forster Specialty Ins. Co. v. Creekstone Builders, Inc., 

__ S.W.3d __, 01-14-00907-CV, 2015 WL 6488276 (Tex. App.—Houston [1st 

Dist.] Oct. 27, 2015, no. pet. h.) ................................................................................ 1 

Davis v. Nat’l Lloyds Ins. Co., 

__ S.W.3d __, 01-14-00278-CV, 2015 WL 6081411 (Tex. App.—Houston [1st 

Dist.] Oct. 13, 2015, no. pet. h.) .............................................................................. 11 

Exxon Corp. v. Choo, 

881 S.W.2d 301 (Tex. 1994) ..................................................................................... 3 

In re Doe 10, 

78 S.W.3d 338 (Tex. 2002) ....................................................................................... 6 

In re Pirelli Tire, L.L.C., 

247 S.W.3d 670 (Tex. 2007) ................................................................................... 10 

Lenoir v. Marino, 

469 S.W.3d 669 ....................................................................................................... 11 

Love v. State Bar of Texas, 

982 S.W.2d 939 (Tex. App.—Houston [1st Dist.] 1998, no pet.) .......................... 14 
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Lumenta v. Bell Helicopter Textron, Inc., 

01-14-00207-CV, 2015 WL 5076299 (Tex. App.—Houston [1st Dist.] Aug. 27, 

2015, no. pet. h.) ....................................................................................................... 7 

Mercer v. Daoran Corp., 

676 S.W.2d 580 (Tex. 1984) ................................................................................... 13 

Pine Oak Builders, Inc. v. Great Am. Lloyds Ins. Co., 

279 S.W.3d 650 (Tex. 2009) ................................................................................... 12 

Piper Aircraft Co. v. Reyno, 

454 U.S. 235 (1981) ............................................................................................ 4, 10 

Quixtar Inc. v. Signature Management Team, LLC, 

315 S.W.3d 28 (Tex. 2010) ....................................................................................... 4 

RSR Corp. v. Siegmund, 

309 S.W.3d 686 (Tex. App.—Dallas 2010, no pet.) .............................................. 10 

State Farm Fire & Casualty Co. v. Gandy, 

925 S.W.2d 696 (Tex. 1996) ..................................................................................... 2 

Truong v. Vuong, 

105 S.W.3d 312 (Tex. App.—Houston [14th Dist.] 2003, no pet.) ........................ 17 

 
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ISSUES PRESENTED ON REHEARING 

1. This case involves an insurance coverage dispute regarding whether the 

subject policies provide the insureds coverage relative to a constructiondefects suit in South Carolina. The policies were issued in Texas, through a 

Texas broker, delivered to the insured in Texas, and specifically exclude 

coverage for operations in South Carolina. In making its forum non 

conveniens analysis, the Panel gave primary emphasis to facts relating to the 

underlying construction-defects suit rather than the facts relating to the 

issuance of the policies. For purposes of this coverage dispute, Appellees 

did not meet their burden of showing that Texas is an inconvenient forum for 

litigation. 

2. The Panel incorrectly considered conclusory and unsupported allegations in 

granting Defendants’ motion to dismiss under the doctrine of forum non 

conveniens, including conclusory statements, allegations in pleadings, and 

unsupported legal opinions. 

3. By placing the focus of the forum non conveniens analysis on the underlying 

tort action (to which Appellant Crum & Forster was not a party) rather than 

on the insurance coverage dispute between the parties, and by basing its 

decision on items that are not properly considered under the forum non 

conveniens doctrine, the Panel has substantially rewritten forum non 

conveniens law. Because the decision of the Panel will affect a substantial 

number of future cases involving forum non conveniens, this case presents 

an extraordinary circumstance that should be reviewed by the Court en banc 

to either maintain the uniformity of the Court’s decisions or explain why 

such a fundamental change in forum non conveniens law is being made. 
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TO THE HONORABLE JUDGES OF THE COURT OF APPEALS: 

 Pursuant to Tex R. App. P. 49, Appellant Crum & Forster Specialty 

Insurance Company files this Motion for Rehearing and Motion for En Banc 

Reconsideration. In this lawsuit, insurer Crum & Forster seeks declaratory relief 

regarding whether it owes insurance coverage for a $55 million judgment 

(“Underlying Judgment”) entered against Appellee Creekstone SC I in state court 

in South Carolina. The trial court dismissed this case for lack of a convenient 

forum, and the Panel affirmed. Crum & Forster Specialty Ins. Co. v. Creekstone 

Builders, Inc., __ S.W.3d __, 01-14-00907-CV, 2015 WL 6488276 (Tex. App.—

Houston [1st Dist.] Oct. 27, 2015, no. pet. h.). 

 The Panel’s opinion improperly deprives Crum & Forster of its choice of a 

Texas venue. The Panel accomplished this by giving controlling weight to the 

forum non conveniens factors applicable to the underlying construction-defect 

lawsuit against Creekstone. That suit has been tried and has resulted in the 

Underlying Judgment. The present case is a contractual coverage dispute 

involving insurance policies issued in Texas that exclude South Carolina coverage. 

The Panel erred by not recognizing the difference between the present contract 

action and the prior tort action and basing its forum non conveniens analysis on 

factors irrelevant to a contract dispute. 
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 Declaratory judgment actions to resolve insurance coverage disputes are an 

important tool under Texas law and have been recommended by the Texas 

Supreme Court. See State Farm Fire & Casualty Co. v. Gandy, 925 S.W.2d 696, 

714 (Tex. 1996) (noting that when a coverage dispute arises, “it is not unusual” for 

an insured or an insurer to file a declaratory judgment action because such disputes 

“can often be expeditiously resolved in an action for declaratory judgment”). The 

Panel’s decision has the potential to greatly undercut the efficacy of declaratory 

judgment actions in Texas by denying Texas as a venue solely because some of the 

underlying facts that gave rise to the coverage dispute occurred outside of Texas. 

Such a fundamental change in declaratory judgment law should not happen without 

careful consideration of the ramifications of the Panel’s decision both by the Panel 

and the Court en banc. 

RELEVANT BACKGROUND 

 Crum & Forster issued general liability policies to five related entities, 

including Appellees1

 Creekstone Builders, Inc., Creekstone SC I, LLC, and 

Nashville Creekstone, LLC. CR 120–122, 139, 215, 286. The policies were issued 

through a Texas broker and delivered in Texas. CR 120–122, 139, 215, 286. 

 The policies contained a State Operations Exclusion (“SOE”) that 

specifically excluded coverage for any claim arising out of the insureds’ operations 

 

1

 Appellees are Creekstone Builders, Inc., Creekstone SC I, LLC, Nashville Creekstone, LLC, and Creekstone 

Builders’ president Everett Jackson and vice president Stephen Keller. For simplicity, the collective term 

“Appellees” is used herein, unless it is necessary to refer to the Appellees individually 
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in South Carolina. CR 280, 350. In 2010, Appellees were sued in South Carolina 

for construction defects in an apartment-to-condominium construction project in 

South Carolina. CR 45–46. Crum & Forster denied coverage for the claim 

because of the SOE. A judgment for more than $55 million was entered against 

Creekstone SC I in June 2014. CR 46. 

 In May 2014, Crum & Forster filed this suit (“Lawsuit”) against Appellees 

seeking declaratory relief on whether the judgment was covered under the policies 

in light of the SOE precluding coverage for South Carolina. CR 5. Appellees 

answered and filed a motion to dismiss on grounds of forum non conveniens and 

the failure to join the plaintiff in the underlying suit an indispensable party. The 

trial court granted Appellees’ motion on both grounds. CR 407. The Panel 

affirmed the trial court’s judgment on the forum non conveniens ground and 

expressly did not consider the indispensable party ground. See Panel Op., 2015 

WL 6488276, at *9 & n.3.2

 

ARGUMENT 

Forum non conveniens is an equitable doctrine exercised by courts to 

prevent the imposition of an inconvenient jurisdiction on a litigant. Exxon Corp. v. 

Choo, 881 S.W.2d 301, 302 (Tex. 1994). The “central focus of the forum non 

 

2 Several weeks after Crum & Forster filed this Lawsuit, Creekstone SC I and other parties filed 

an action in federal court in South Carolina seeking a declaration that Crum & Forster is 

obligated to pay the judgment entered in the underlying case and additional relief. That action 

remains pending at this time. 
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conveniens inquiry is convenience.” Quixtar Inc. v. Signature Management Team, 

LLC, 315 S.W.3d 28, 33 (Tex. 2010) (quoting Piper Aircraft Co. v. Reyno, 454 

U.S. 235, 249 (1981)). Appellees as movants bore the burden to prove entitlement 

to dismissal on forum non conveniens grounds. See Brenham Oil & Gas, Inc. v. 

TGS-NOPEC Geophysical Co., __ S.W.3d __, 01-13-00349-CV, 2015 WL 

4591788, at *15 (Tex. App.—Houston [1st Dist.] July 30, 2015, no pet.). 

A. The Panel Did Not Apply the Correct Factors in Its Analysis 

A forum non conveniens analysis requires that the court balance public and 

private interest factors to decide if dismissal is appropriate. See id. at *16. In its 

opinion, the Panel improperly focused more on the public and private factors as 

they relate to the underlying tort action than to the present coverage dispute. While 

South Carolina may have a connection to the construction-defect case, South 

Carolina was a stranger to the issuance and interpretation of the insurance policies. 

 The Court’s reference to facts relevant to the underlying suit may have been 

made because Appellees, who bore the burden of showing that the balance of 

factors favors dismissal, made no effort to address the factors that relate to the 

coverage case brought in Texas.3

 The facts surrounding the construction work 

done by Creekstone and the resulting defects in construction have already been 

litigated and reduced to judgment. There will be no reason in this case to inquire 

 

3 The deficiencies in Appellees’ proof will be discussed in more detail in the next section. 
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into the details of the construction work, the damages allegedly suffered by the 

purchasers of the condominium units, or anything else that happened on the ground 

in South Carolina. That story has ended. 

 The appropriate forum non conveniens analysis in this case should be on the 

public and private factors that relate to negotiation and issuance of the contract and 

application of the contract terms to the written judgment. See Baker v. Bell 

Helicopter Textron, Inc., 985 S.W.2d 272, 277 (Tex. App.—Fort Worth 1999, pet. 

denied) (explaining forum non conveniens decisions are made pursuant to “the 

facts or circumstances of the particular case” (emphasis added)). Nonetheless, 

Appellees did not present facts relevant to the contract-interpretation issues present 

in this Lawsuit, but instead focused on the fact that the underlying tort case 

occurred in another state. Appellees simply provided no evidence proving that it 

would be inconvenient for them to litigate this declaratory judgment action in 

Texas. 

 The Panel took the sparse facts supplied by Appellees and conducted its 

forum non conveniens analysis without asking the basic question of whether Texas 

is a substantially inconvenient forum for a coverage case involving policies issued 

in Texas to a group of insureds who have their principal place of business in Texas 

and that exclude coverage for South Carolina operations. 
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 The Panel also gave undue influence to the fact that Creekstone SC I was a 

South Carolina limited liability company without explaining why that is an 

important fact in this litigation. There is no evidence that any document related to 

Creekstone SC I is maintained by the company in South Carolina or that any of its 

officers or employees who might be witnesses in this case are located in South 

Carolina. 

 In short, the Panel’s analysis improperly puts its focus on evidence relating 

to the underlying construction project, but that is not an issue in this case. The 

inquiry that must be made is whether the public and private interest factors as 

applied to the present coverage dispute support dismissal of the suit in Texas. 

B. Appellees Failed to Meet Their Burden of Proof 

 Appellees bore the burden to prove entitlement to dismissal on forum non 

conveniens grounds. Brenham Oil, 2015 WL 4591788, *15. The Panel 

determined that Appellants did not need to present evidence at the hearing on its 

motion to dismiss, but instead could rely on evidence attached to their motion. 

Panel Op., 2015 WL 6488276, *5–6. The Panel recognized that Appellants were 

required to present “some evidence” in support of their motion. Id. 

 The term “some evidence” does not include speculation or unsupported, 

conclusory allegations or statements. See In re Doe 10, 78 S.W.3d 338, 342 (Tex. 

2002); CCC Group, Inc. v. S. Cent. Cement, Ltd., 450 S.W.3d 191, 202 (Tex. 
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App.—Houston [1st Dist.] 2014, no pet.). This Court recently reiterated that a trial 

court’s implicit findings supporting a forum non conveniens decision cannot be 

arbitrary and will be affirmed only “so long as they are also supported by the 

evidence.” Lumenta v. Bell Helicopter Textron, Inc., 01-14-00207-CV, 2015 WL 

5076299, at *4 (Tex. App.—Houston [1st Dist.] Aug. 27, 2015, no. pet. h.) (mem. 

op.) (emphasis added). 

 As the Panel noted, the only evidence Appellees presented was attached to 

their motion to dismiss. The evidence generally consisted of an affidavit from the 

corporate entity that is the judgment creditor of Creekstone SC I for the underlying 

suit,4

 corporate documents relating to “Creekstone Management, LLC” (showing it 

is a Texas corporation), and the underlying judgment. Appellees did not offer any 

evidence discussing where the contract formation and issuance occurred, whether 

Creekstone SC I still has any physical presence in Texas, where any witnesses are 

located, or whether Texas is an inconvenient forum for any witness other than the 

judgment creditor (who is not a party to the suit and may not even be a witness in 

this case). 

 It is against this record that the propriety of dismissal must be evaluated. 

 

 

4

 Creekstone SC I’s judgment creditor is East Bridge Lofts Property Owners Association, Inc. (“POA”). 
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1. Private Interest Factors 

 Appellees presented very limited evidence on the private interest factors in 

support of their motion to dismiss. Moreover, it is the evidence Appellees did not 

present that most glaringly demonstrates why the trial court erred by dismissing 

this Lawsuit. Appellees did not present any evidence indicating (1) where the 

sources of proof potentially relevant to this Lawsuit are located, (2) where 

Appellees’ own corporate representatives and employees are located, (3) where the 

subject insurance policies were negotiated, (4) where witnesses Appellees will 

possibly use to litigate this Lawsuit are located, or (5) why it is inconvenient, 

financially or otherwise, for Appellees to participate in this Lawsuit. In the 

absence of this evidence, Appellees cannot meet their burden. 

 Instead of providing relevant information, Appellees presented a single 

affidavit from a representative of the judgment creditor in the underlying suit, 

Amanda Graham. CR 45–48. The Panel noted that Graham made the following 

assertions in her affidavit: 

Graham averred that the condominiums that were the subject of the 

construction-defects suit are located in South Carolina, that the POA 

obtained a judgment in South Carolina against Creekstone SC I, that 

the “dispute turns on South Carolina witnesses,” that South Carolina 

is the only state that can exercise jurisdiction over all parties 

interested in the outcome of the insurance coverage dispute, and that a 

suit concerning insurance coverage is also pending in South Carolina 

federal court and involves the POA, Creekstone SC I, Creekstone 

Builders, and Crum & Forster. 
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Panel Op., 2015 WL 6488276, at *7. From these assertions, the Panel concluded, 

“It is clear from the record that at least some of Creekstone’s sources of proof and 

witnesses are located in South Carolina.” Id. For several reasons, the Panel’s 

reliance on Graham’s assertions was misplaced. 

 First, Graham’s assertions that “condominiums that were the subject of the 

construction-defects suit are located in South Carolina” and “POA obtained a 

judgment in South Carolina against Creekstone SC I” are wholly irrelevant. 

Appellees and the Panel provided no explanation for why the location of the 

condominiums or where the Underlying Judgment was rendered have any bearing 

on whether this declaratory judgment action is convenient in Texas. 

 Second, Graham’s assertion that the “dispute turns on South Carolina 

witnesses” is wholly conclusory and thus no evidence. Citing to Supreme Court of 

Texas precedent, the Panel explained, “Creekstone was not required to submit 

detailed lists of the witnesses that it plans to call or the evidence that it plans to 

introduce at trial.” Panel Op., 2015 WL 6488276, at *7 (citing Quixtar, 315 

S.W.3d at 34). However, the Panel improperly interpreted this precedent to mean 

that Appellees did not have to present any evidence regarding the witnesses they 

plan to call. 

 The Quixtar court, while explaining that the movant need not conduct an 

“extensive investigation” and provide the substance of all its potential witnesses’ 
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testimony, held, “Obviously, there needs to be enough information ‘to enable the 

District Court to balance the parties’ interests.’” Quixtar, 315 S.W.3d at 34 

(quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981)); see also RSR Corp. v. 

Siegmund, 309 S.W.3d 686, 713 (Tex. App.—Dallas 2010, no pet.) (holding that 

forum non conveniens movant failed to meet burden of proof by presenting “a 

conclusory statement that it would be ‘hardship’ to litigate in Dallas and presenting 

an affidavit explaining [movant’s] lack of presence in Texas”). In prior appeals in 

which this Court affirmed dismissal based on forum non conveniens, the movant 

provided at least some explanation regarding why witnesses located in the soughtafter forum had a connection to the issues in dispute.5

 Neither in the Graham 

affidavit nor anywhere else have Appellees identified a single witness who can 

provide relevant testimony to this case who lives or works in South Carolina. 

 

5 See, e.g., Lumenta, 2015 WL 5076299, at *2 (“Moreover, all the ‘key witnesses’ are in 

Indonesia, including the INTSC representatives, who conducted the official investigation of the 

crash and recovery of the wreckage; the Manado Airport employees, who tracked and 

communicated with the helicopter; the mechanics, who serviced the helicopter; and all the 

employees of the companies that owned, chartered, maintained, and operated the helicopter.”); 

Brenham Oil, 2015 WL 4591788, at *18 (“[T]here are other material witnesses who are located 

in Togo and Israel. The Togolese government was assisted at the negotiations with Brenham Oil 

by Yair Green, an Israeli lawyer, and Raphael Edery, an Israeli economic adviser. It is 

undisputed that Siah and his superior Dammipi Noupokou, the Togolese Minister of Energy and 

Mines, are located in Togo. TGS asserts that it is unable to obtain vital defense testimony in a 

Texas court because the Togolese witnesses refused to participate in discovery in Texas, and 

their testimony could not be secured through the Texas court because Togo is not a party to the 

Hague Convention on the Taking of Evidence Abroad.”); see also In re Pirelli Tire, L.L.C., 247 

S.W.3d 670, 678 (Tex. 2007) (“First, key evidence and witnesses concerning damages are in 

Mexico. Benitez, the only witness to the accident, together with the accident investigators and 

all medical personnel are in Mexico. The witnesses most likely to be familiar with the condition 

and maintenance of the truck and the tire, the truck’s owner and its importer, are in Mexico.”). 
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 A conclusory statement in an affidavit never constitutes “some evidence.” 

See Lenoir v. Marino, 469 S.W.3d 669, 686 (Tex. App.—Houston [1st Dist.] 2015, 

pet. filed) (“Conclusory statements in affidavits are insufficient to establish the 

existence of a fact.”). Conclusory statements are so fundamentally flawed, that 

objections to such statements cannot be waived. See Bosch v. Frost Nat’l Bank, __ 

S.W.3d __, 01-14-00191-CV, 2015 WL 4463666, at *4 (Tex. App.—Houston [1st 

Dist.] July 21, 2015, no pet.). The Panel’s reliance on conclusory affidavit 

testimony was erroneous and in contradiction of this Court’s precedent. 

 It is also notable that Appellees did not provide any statement, conclusory or 

otherwise, regarding whether they plan to use witnesses or evidence from South 

Carolina in the Lawsuit. Instead, Appellees submitted their judgment creditor’s

conclusory statement on the issue—a non-party to this Lawsuit. Clearly, a nonparty’s conclusory statement about witnesses is not evidence that Appellees will be 

inconvenienced if they try this Lawsuit in Texas. 

 Furthermore, neither Creekstone nor the Panel explained why any witnesses 

are needed. Again, this is a contract interpretation case, not a fact-intensive tort 

case. As this Court frequently recognizes, extrinsic evidence and testimony 

generally have no role in a contract interpretation case. See, e.g., Davis v. Nat’l 

Lloyds Ins. Co., __ S.W.3d __, 01-14-00278-CV, 2015 WL 6081411, at *6 (Tex. 

App.—Houston [1st Dist.] Oct. 13, 2015, no. pet. h.); Dupree v. Boniuk Interests, 
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Ltd., __ S.W.3d __, 01-14-00864-CV, 2015 WL 4624117, at *9 (Tex. App.—

Houston [1st Dist.] Aug. 4, 2015, no pet.). 

 In its Original Petition, Crum & Forster contends it does not owe coverage 

because one of the policies does not apply to any of the Creekstone defendants in 

the underlying suit, and the other policies contain the unambiguous SOE. CR 9–

10. These issues will be decided by a court’s review of the policies. See Pine Oak 

Builders, Inc. v. Great Am. Lloyds Ins. Co., 279 S.W.3d 650, 655 (Tex. 2009) 

(“The duty to defend depends on the language of the policy setting out the 

contractual agreement between insurer and insured.”). Indeed, even in the 

declaratory judgment action filed in South Carolina federal court, Creekstone 

asserts legal arguments—not evidentiary grounds—as for why the exclusion does 

not apply. CR 64 at ¶ 30. Appellees do not even suggest, let alone provide 

evidence to show, that it would be more inconvenient to make this argument in 

Texas. 

Third, Graham’s assertion “that South Carolina is the only state that can 

exercise jurisdiction over all parties interested in the outcome of the insurance 

coverage dispute” is clearly not a statement of fact but a conclusory legal 

opinion—a legal opinion Graham is not qualified to make. A conclusory opinion 

on a matter of law reserved for the court’s determination is not evidentiary. See 

Tex. R. Civ. P. 39 (providing trial court determines whether a party is 
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indispensable); Mercer v. Daoran Corp., 676 S.W.2d 580, 583 (Tex. 1984). 

Additionally, the Panel does not explain why this statement is important. In its 

first appellate issue, Appellees argued that the judgment creditor is an 

indispensable party to this Lawsuit. However, the Panel expressly did not address 

this issue. Panel Op., 2015 WL 6488276, at *9 n.3. 

 Fourth, Graham’s assertion that “a suit concerning insurance coverage is 

also pending in South Carolina federal court and involves the POA, Creekstone SC 

I, Creekstone Builders, and Crum & Forster” is again not evidence showing that 

South Carolina would be a more convenient forum for the parties. Merely because 

a party files a suit in a chosen venue does not mean that venue is more convenient 

than any other venue. Hence, the Panel erred by deciding this statement is 

evidence supporting the trial court’s dismissal. 

 Finally, the Panel apparently determined that allegations in a pleading 

establish that Creekstone SC I lacks a Texas connection: 

Although Crum & Forster alleged in its original petition in the 

underlying action that Creekstone SC I was organized under the laws 

of South Carolina but had a principal place of business in Texas, 

Creekstone alleged in the federal action, which it attached as 

evidence to its motion to dismiss, that Creekstone SC I “is a South 

Carolina limited liability company.” 

Id. at *7 (emphasis added). Based on this allegation, the Panel determined that 

Texas is a poor choice for venue because “the one defendant in the underlying 
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action that is a party to the judgment in the construction-defects suit, Creekstone 

SC I, is a South Carolina entity.” Id. 

 The Panel’s determination is erroneous because an allegation in a pleading is 

not evidence. See Love v. State Bar of Texas, 982 S.W.2d 939, 943 (Tex. App.—

Houston [1st Dist.] 1998, no pet.). More importantly, whether Creekstone SC I is a 

South Carolina limited liability company is irrelevant to this contract-interpretation 

action (and also does not disprove that Creekstone SC I has a principal place of 

business in Texas). The Panel did not explain why the place of Creekstone SC I’s 

incorporation is material to this Lawsuit and its place of business is not. 

 Accordingly, the Panel improperly considered the private interest factors by 

focusing on the location of the underlying tort claims instead on how the factors 

apply to this declaratory judgment action. 

2. Public Interest Factors 

 The Panel next analyzed the public interest factors. Panel Op., 2015 WL 

6488276, at *8–9. The Panel began by acknowledging that Texas is a proper 

forum for this declaratory judgment action: “Crum & Forster is correct that 

Creekstone Builders is a Texas entity and that Crum & Forster’s broker involved in 

issuing the policies is located in Houston. As a result, Texas does have an interest 

in adjudicating this dispute, and there is at least some justification for retaining the 

case in Texas.” Id. at *8. 
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 Nonetheless, the Panel then once again focused on the irrelevant facts that 

Creekstone SC I is a South Carolina entity and the underlying tort case occurred in 

South Carolina: 

However, one of the defendants in this case, Creekstone SC I, the only 

defendant in the underlying action that is also a party to the judgment 

rendered in the construction-defects suit, is a South Carolina entity, 

and the insurance coverage dispute that is the focus of the underlying 

action arose solely because of the defective condominium 

construction that occurred in South Carolina. Creekstone Builders, 

the Texas entity, is not a party to the construction-defects judgment 

and therefore is not liable for that judgment. Thus, although this case 

does involve a connection to Texas, it is more appropriately 

characterized as a South Carolina controversy. 

Id. at *8. Hence, the Panel concluded that South Carolina has more of a stake in 

this contract-interpretation claim than Texas merely because the underlying tort 

claim occurred in South Carolina. As stated above, this improperly emphasizes the 

location of a separate and distinct tort lawsuit, with different issues and burdens, 

and ignores the actual Texas connection to this Lawsuit, which include: 

 The service-of-process documents show that Appellees Creekstone Builders, 

Nashville Creekstone, Everett Jackson, Creekstone SC I were served with 

this Lawsuit in Texas and have all answered. CR 14–27. 

 The subject policies were procured by a broker located in Houston, Texas 

and delivered to insureds located in Houston, Texas. RR 17–18; CR 120–

122, 139, 215, 286. 

 The policies expressly exclude coverage for South Carolina operations. CR 

280, 350. The people of South Carolina have no reason to be jurors in a case 

involving a policy issued in Texas that excludes South Carolina coverage. It 

is more proper for the people of Texas to serve as jurors in this Lawsuit (if 
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fact-issues exist that require jury resolution, which Appellees have not 

demonstrated). 

 Accordingly, this declaratory judgment action is not “more appropriately 

characterized as a South Carolina controversy,” but is a contract-interpretation 

dispute involving insurance policies issued in Texas through a Texas broker to a 

Texas entity. 

 Finally, the Panel stated: 

Moreover, we note that an insurance coverage dispute is also pending 

in South Carolina federal court, that the POA is a party to that action, 

and that Crum & Forster, the defendant in that action, has not 

contested jurisdiction in the South Carolina federal court. Thus, the 

trial court’s decision to dismiss the underlying action promotes 

judicial economy by reducing the multiplicity of suits related to the 

same controversy. 

Panel Op., 2015 WL 6488276, at *9. As already explained, the Panel provided no 

analysis regarding why the judgment creditor’s absence from this Texas suit is 

significant. Moreover, according to the Panel’s reasoning, a defendant can create a 

situation favoring forum non conveniens dismissal simply by filing its own suit in 

another state. The Panel’s analysis actually encourages multiplicity of suits and 

gamesmanship by defendants seeking to inconvenience plaintiffs who have already 

chosen Texas as a forum. 

 If Appellees really believed that Texas is an inconvenient forum, they would 

have come forward with evidence that names witnesses located in South Carolina, 

or identified documents that existed only in South Carolina, or identified the 
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physical presence Creekstone SC I has in South Carolina that makes Texas a 

difficult forum in which to resolve the contract dispute. Appellees did none of this 

because Texas is not an inconvenient forum, and the Panel erred in affirming the 

dismissal. 

CONCLUSION AND PRAYER 

 In sum, the trial court abused its discretion in granting dismissal based on 

forum non conveniens. In a concurrence from the Fourteenth Court of Appeals, 

Justice Frost explained why a trial court cannot grant dismissal for forum non 

conveniens when the movant does not present actual evidence favoring dismissal: 

Forum non conveniens considerations allow the trial court to engage 

in a discretionary balancing of factors in order to determine the most 

appropriate forum for the litigation. A trial court’s balancing of the 

factors must not be based on speculation or conjecture, but on 

evidence in the record. Absent proof of inconvenience or additional 

costs, there is no basis to conclude that maintenance of the action in 

Texas would work a substantial injustice to the Vuongs or that the 

balance of private interests of the parties and public interests of the 

state tilts strongly in favor of a Georgia forum. The Vuongs have not 

adduced evidence demonstrating that the Texas forum chosen by the 

Truongs is so completely inappropriate and inconvenient that it would 

be better to shut down the Texas litigation so that the parties can 

litigate this dispute exclusively in the Georgia court.

Truong v. Vuong, 105 S.W.3d 312, 321 (Tex. App.—Houston [14th Dist.] 2003, no 

pet.) (Frost, J., concurring). The same rationale applies here. 

 Accordingly, Crum & Forster respectfully requests that the Panel grant this 

motion for rehearing, or alternatively the Court en banc grant this motion for 
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reconsideration, withdraw the Panel opinion and judgment, and render judgment 

reversing the trial court’s judgment dismissing this Lawsuit, and for any other 

relief to which Crum & Forster is entitled, included costs of this appeal. 

 Respectfully submitted, 

THOMPSON COE COUSINS & IRONS, LLP 

By: /s/ Brian S. Martin 

 BRIAN S. MARTIN

 Texas State Bar No. 13055350 

E-Mail: bmartin@thompsoncoe.com 

 RODRIGO “DIEGO” GARCIA, JR. 

 Texas State Bar No. 00793778 

E-Mail: dgarcia@thompsoncoe.com 

CHRISTOPER H. AVERY

 Texas State Bar No. 24069321 

E-Mail: cavery@thompsoncoe.com 

 One Riverway, Suite 1400 

 Houston, Texas 77056-1988 

 (713) 403-8210 Telephone 

 (713) 403-8299 Facsimile 

ATTORNEYS FOR APPELLANT 

CRUM & FORSTER SPECIALTY 

INSURANCE COMPANY 

 
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05060.795 

CERTIFICATE OF COMPLIANCE 

I certify that this Motion for Rehearing and Motion for En Banc 

Reconsideration contains approximately 4,357 words, not including the parts 

excluded by Tex. R. App. P. 9.4(i)(1). Accordingly, it complies with Rule 

9.4(i)(2)(D). 

 /s/ Brian S. Martin 

 BRIAN S. MARTIN 

CERTIFICATE OF SERVICE 

I certify that on November 30, 2015, an electronic copy of this brief was 

served on all counsel of record. 

 /s/ Brian S. Martin 

 BRIAN S. MARTIN