2315842v4 05060.795 IN THE COURT OF APPEALS FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON

________________ _______________ NO. 01-14-00907-CV

________________ _______________

CRUM & FORSTER SPECIALTY IN SURANCE COMPANY, Appellant

v. CREEKSTONE BUILDERS, I NC., 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 FO R REHEARING AND MOTION FOR EN BANC RECONSIDERATION

______________________ __________________ B RIAN S. M ARTIN Texas State Bar No. 13055350 R ODRIGO “D IEGO ” G ARCIA , J R . Texas State Bar No. 00793778 C HRISTOPER H. A VERY Texas State Bar No. 24069321 T HOMPSON , C OE , C OUSINS & I RONS , 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

CLERKi 2315842v4 05060.795 TABLE OF CONTENTS TABLE OF CONTENTS ............................................................................................ i TABLE OF AUTH ORITIES .................................................................................... ii ISSUES PRESENTED ON REHEARING ............................................................... iv RELEVANT BA CKGROU ND ................................................................................. 2 ARGUMEN T ............................................................................................................. 3 A. The Panel Did Not Apply the Corr ect Factors in Its Analysis .................. 4 B. Appellees Failed to Meet Their Burden of Proof ...................................... 6 1. Private Inte rest Fact ors ..................................................................... 8 2. Public Inte rest Fact ors .................................................................... 14 CONCLUSION AND PRAYER ............................................................................. 17ii 2315842v4 05060.795 INDEX OF AUTHORITIES Baker v. Bell Helicopter Textron, Inc., 985 S.W.2d 272 (Tex. App.—Fort Wo rth 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 pe t.) ..................................................................................... 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 [1 st 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 (T ex. 1994) ..................................................................................... 3 In re Doe 10, 78 S.W.3d 338 (T ex. 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 [1 st Dist.] 1998, no pet.) .......................... 14iii 2315842v4 05060.795 Lumenta v. Bell Helicopt er Textron, Inc., 01-14-00207-CV, 2015 WL 5076299 (Tex. App.—Houst on [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 (19 81) ............................................................................................ 4, 10 Quixtar Inc. v. Signatu re Management Team, LLC, 315 S.W.3d 28 (T ex. 2010) ....................................................................................... 4 RSR Corp. v. Siegmund, 309 S.W.3d 686 (Tex. App.—Da llas 2010, no pe t.) .............................................. 10 State Farm Fire & Casualty Co. v. Gandy, 925 S.W.2d 696 (T ex. 1996) ..................................................................................... 2 Truong v. Vuong, 105 S.W.3d 312 (Tex. App.—Houston [ 14th Dist.] 2003, no pet.) ........................ 17iv 2315842v4 05060.795 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 polic ies were issued in Texas, through a Texas broker, delivered to the insure d in Texas, and specifically exclude coverage for operations in S outh Carolina. In making its forum non conveniens analysis, the Panel gave primary emphasis to facts relating to the underlying construction-defects suit rath er than the facts relating to the issuance of the policies. For purposes of this coverage dispute, Appellees did not meet their burden of showing th at Texas is an inconvenient forum for litigation. 2. The Panel incorrectly considered c onclusory 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 betw een the parties, and by basing its decision on items that are not properly considered under the forum non conveniens doctrine, the Panel ha s substantially rewritten forum non conveniens law. Because the decision of th e Panel will affect a substantial number of future cases involving forum non conveniens , this case presents an extraordinary circumstance that shou ld 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.- 1 - 2315842v4 05060.795 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, insu rer Crum & Forster seeks declaratory relief regarding whether it owes insuran ce coverage for a $55 million judgment (“Underlying Judgment”) entered against A ppellee Creekstone SC I in state court in South Carolina. The tr ial 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 contro lling weight to the forum non conveniens factors applicable to the underlying construction-defect lawsuit against Creekstone. That suit ha s been tried and has resulted in the Underlying Judgment. The present cas e is a contractual coverage dispute involving insurance policies issued in Texa s that exclude South Carolina coverage. The Panel erred by not recognizing the di fference between the present contract action and the prior tort action and basing its forum non conveniens analysis on factors irrelevant to a contract dispute.- 2 - 2315842v4 05060.795 Declaratory judgment actions to resolv e insurance coverage disputes are an important tool under Te xas 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 declar atory judgment action because such disputes “can often be expeditiously resolved in an action for declaratory judgment”). The Panel’s decision has the potential to grea tly undercut the effica cy of declaratory judgment actions in Texas by denying Texas as a venue solely because some of the underlying facts that gave rise to the cove rage dispute occurred outside of Texas. Such a fundamental change in declarator y 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 Appellees 1 Creekstone Builders, Inc., Creekstone SC I, LLC, and Nashville Creekstone, LLC. CR 120–122, 139, 215, 286. The po licies were issued through a Texas broker and delivered in Texas. CR 120–12 2, 139, 215, 286. The policies contained a State Op erations Exclusion (“SOE”) that specifically excluded coverage for any clai m 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 necessa ry to refer to the Appellees individually- 3 - 2315842v4 05060.795 in South Carolina. CR 280, 350. In 2 010, Appellees were sued in South Carolina for construction defects in an apartment- to-condominium cons truction project in South Carolina. CR 45–46. Crum & Fo rster denied coverage for the claim because of the SOE. A judgment for mo re than $55 million was entered against

Creekstone SC I in June 2014. CR 46. In May 2014, Crum & Forster filed th is suit (“Lawsuit”) against Appellees seeking declaratory relief on whether th e judgment was covere d 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 u nderlying 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 inconve nient 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 s eeking a declaration that Crum & Forster is obligated to pay the judgment entered in the unde rlying case and additional relief. That action remains pending at this time.- 4 - 2315842v4 05060.795 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)). Appell ees 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 th e 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 bur den 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 constr uction 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.- 5 - 2315842v4 05060.795 into the details of the construction work , the damages allegedly suffered by the purchasers of the condominium units, or a nything 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 te rms 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 litiga te this declaratory judgment action in

Texas. The Panel took the sparse facts su pplied by Appellees and conducted its forum non conveniens analysis without asking the ba sic 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.- 6 - 2315842v4 05060.795 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 comp any in South Carolina or that any of its officers or employees who might be witne sses 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 th at is not an issue in this case. The inquiry that must be made is whether th e 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 recogni zed 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.- 7 - 2315842v4 05060.795 App.—Houston [1st Dist.] 2014, no pet.). Th is 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 gene rally consisted of an affidavit from the corporate entity that is the judgment creditor of Creekst one SC I for the underlying suit, 4 corporate documents relating to “Cr eekstone Management , LLC” (showing it is a Texas corporation), and the underlying judgment. Appellees did not offer any evidence discussing where th e contract formation and issuance occurred, whether Creekstone SC I still has any physical pres ence in Texas, wher e any witnesses are located, or whether Texas is an inconveni ent 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 pr opriety of dismissal must be evaluated.

4 Creekstone SC I’s judgment creditor is East Bridge Lofts Property Owners Association, Inc. (“POA”).- 8 - 2315842v4 05060.795 1. Private Interest Factors Appellees presented very limited eviden ce 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 pres ent 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 negotiate d, (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, Appe llees cannot meet their burden. Instead of providing relevant info rmation, Appellees presented a single affidavit from a representative of the judgment creditor in the underlying suit, Amanda Graham. CR 45–48. The Panel not ed that Graham made the following assertions in her affidavit: Graham averred that th e condominiums that we re the subject of the construction-defects suit are located in South Carolina, that the POA obtained a judgment in South Carolin a against Creekstone SC I, that the “dispute turns on South Carolin a witnesses,” that South Carolina is the only state that can exer cise jurisdiction over all parties interested in the outcome of the insu rance coverage dispute, and that a suit concerning insurance coverage is also pending in South Carolina federal court and involves the P OA, Creekstone SC I, Creekstone Builders, and Crum & Forster.- 9 - 2315842v4 05060.795 Panel Op., 2015 WL 6488276, at *7. From these assertions, the Panel concluded, “It is clear from the record th at at least some of Creeks tone’s sources of proof and witnesses are located in South Carolina.” Id. For several reasons, the Panel’s reliance on Graham’s asse rtions 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 Creekst one SC I” are wholly irrelevant. Appellees and the Panel pr ovided 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 conclu sory 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 plan s 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 imprope rly 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 th e movant need not conduct an “extensive investigation” and provide the substance of all its potential witnesses’- 10 - 2315842v4 05060.795 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.—Da llas 2010, no pet.) (holding that forum non conveniens movant failed to meet burde n of proof by presenting “a conclusory statement that it would be ‘har dship’ to litigate in Dallas and presenting an affidavit explaining [movant’s] lack of pr esence in Texas”). In prior appeals in which this Court affirm ed dismissal based on forum non conveniens , the movant provided at least some explanation regard ing 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 wh o lives or works in South Carolina.

5 See, e.g. , Lumenta , 2015 WL 5076299, at *2 (“Moreover, al l the ‘key witnesses’ are in Indonesia, including the INTSC repr esentatives, who conducted the o fficial 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, chartere d, maintained, and operated the helicopter.”); Brenham Oil , 2015 WL 4591788, at *18 (“[T]here are other ma terial 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 economi c adviser. It is undisputed that Siah and his superior Dammipi Noupokou, the Togol ese 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 refuse d to participate in discovery in Texas, and their testimony could not be s ecured through the Texas court becau se 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 eviden ce and witnesses concerning damages are in Mexico. Benitez, the only witness to the accide nt, 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 tr uck’s owner and its importe r, are in Mexico.”).- 11 - 2315842v4 05060.795 A conclusory statement in an affida vit never constitutes “some evidence.”

See Lenoir v. Marino , 469 S.W.3d 669, 686 (Tex. A pp.—Houston [1st Dist.] 2015, pet. filed) (“Conclusory st atements in affidavits are insufficient to establish the existence of a fact.”). Conclusory stat ements are so fundam entally 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. Inst ead, Appellees submitted their judgment creditor’s conclusory statement on the issue—a non-pa rty to this Lawsu it. 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 Creeksto ne nor the Panel explained why any witnesses are needed. Again, this is a contract in terpretation case, not a fact-intensive tort case. As this Court frequently recogn izes, 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-C V, 2015 WL 6081411, at *6 (Tex. App.—Houston [1st Dist.] Oc t. 13, 2015, no. pet. h.); Dupree v. Boniuk Interests,- 12 - 2315842v4 05060.795 Ltd. , __ S.W.3d __, 01-14-00864-CV, 2015 WL 4624117, at *9 (Tex. App.— Houston [1st Dist.] A ug. 4, 2015, no pet.). In its Original Petition, Crum & Fors ter contends it does not owe coverage because one of the policies does not appl y to any of the Creekstone defendants in the underlying suit, and the other polic ies 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 la nguage of the policy setting out the contractual agreement between insurer a nd insured.”). Indeed, even in the declaratory judgment action filed in S outh 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 Sout h Carolina is the only state that can exercise jurisdiction over a ll parties interested in th e outcome of the insurance coverage dispute” is clearly not a stat ement of fact but a conclusory legal opinion—a legal opinion Graham is not qualif ied to make. A conclusory opinion on a matter of law reserved for the cour t’s determination is not evidentiary. See Tex. R. Civ. P. 39 (pr oviding trial court determin es whether a party is- 13 - 2315842v4 05060.795 indispensable); Mercer v. Daoran Corp. , 676 S.W.2d 580, 583 (Tex. 1984). Additionally, the Panel does not explain w hy this statement is important. In its first appellate issue, Appellees argue d that the judgment creditor is an indispensable party to this Lawsuit. Ho wever, 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 insura nce coverage is also pending in South Carolin a federal court and involves the POA, Creekstone SC I, Creekstone Builders, and Crum & Fors ter” 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. He nce, the Panel erred by deciding this statement is evidence supporting the trial court’s dismissal. Finally, the Panel appare ntly determined that allegations in a pleading establish that Creekstone SC I lacks a Texas connection: Although Crum & Forste r alleged in its original petition in the underlying action that Creekstone SC I was organized under the laws of South Carolina but had a princi pal 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 Pane l determined that Texas is a poor choice for venue because “the one defendant in the underlying- 14 - 2315842v4 05060.795 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 a llegation 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 irre levant to this contract-interpretation action (and also does not disp rove that Creekstone SC I has a principal place of business in Texas). The Panel did not ex plain why the place of Creekstone SC I’s incorporation is material to this Laws uit and its place of business is not. Accordingly, the Panel improperly consid ered 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 in terest factors. Panel Op., 2015 WL 6488276, at *8–9. The Panel began by acknowledging that Texas is a proper forum for this declaratory judgment acti on: “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 doe s have an interest in adjudicating this dispute, and there is at least some justification for retaining the case in Texas.” Id. at *8.- 15 - 2315842v4 05060.795 Nonetheless, the Panel then once again focused on the irrelevant facts that Creekstone SC I is a South Carolina entit y and the underlying tort case occurred in South Carolina: However, one of the defendants in th is case, Creekstone SC I, the only defendant in the underlying action that is also a party to the judgment rendered in the construction-defect s suit, is a South Carolina entity, and the insurance coverage dispute th at is the focus of the underlying action arose solely because of the defective condominium construction that occurred in Sout h 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 Texa s, 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 stat ed above, this improperly emphasizes the location of a separate and distinct tort la wsuit, 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 J ackson, 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- 16 - 2315842v4 05060.795 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 controve rsy,” 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 de fendant 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 mu ltiplicity of suits related to the same controversy. Panel Op., 2015 WL 6488276, at *9. As al ready 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 act ually encourages multiplicity of suits and gamesmanship by defendants s eeking 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 na mes witnesses located in South Carolina, or identified documents that existed only in South Carolina, or identified the- 17 - 2315842v4 05060.795 physical presence Creekstone SC I has in South Carolina that makes Texas a difficult forum in which to resolve the contr act dispute. Appellees did none of this because Texas is not an inconvenient foru m, 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 F ourteenth Court of Appeals, Justice Frost explained why a tria l court cannot grant dismissal for forum non

conveniens when the movant does not present ac tual evidence favoring dismissal: Forum non conveniens considerations allow the trial court to engage in a discretionary balancing of fact ors in order to determine the most appropriate forum for the litigation. A trial court’s balancing of the factors must not be based on sp eculation or conjecture, but on evidence in the record. Absent pr oof of inconvenience or additional costs, there is no basis to conclude that maintenance of the action in Texas would work a substantial inju stice 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). Th e same rationale applies here. Accordingly, Crum & Forster respectfu lly requests that the Panel grant this motion for rehearing, or alternatively th e Court en banc grant this motion for- 18 - 2315842v4 05060.795 reconsideration, withdraw the Panel opinion and judgment, and render judgment reversing the trial court’s judgment dism issing this Lawsuit, and for any other relief to which Crum & Forster is en titled, included costs of this appeal. Respectfully submitted,

T HOMPSON C OE C OUSINS & I RONS , LLP By: /s/ Brian S. Martin B RIAN S. M ARTIN Texas State Bar No. 13055350 E-Mail: bmartin@thompsoncoe.com R ODRIGO “D IEGO ” G ARCIA , J R

. Texas State Bar No. 00793778 E-Mail: dgarcia@thompsoncoe.com C HRISTOPER H. A VERY 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- 19 - 2315842v4 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 B RIAN S. M ARTIN

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 B RIAN S. M ARTIN