Petition for Writ of Mandamus Conditionally Granted and Memorandum 

Opinion filed July 26, 2018.

In The 

Fourteenth Court of Appeals

NO. 14-18-00362-CV

IN RE ALLSTATE INDEMNITY COMPANY, Relator 

ORIGINAL PROCEEDING 

WRIT OF MANDAMUS 

County Civil Court at Law No. 1 

Harris County, Texas 

Trial Court Cause No. 1102999 

MEMORANDUM OPINION 

On May 7, 2018, relator Allstate Indemnity Company filed a petition for writ 

of mandamus in this court. See Tex. Gov’t Code Ann. § 22.221 (West Supp. 2017); 

see also Tex. R. App. P. 52. In the petition, relator asks this court to compel the 

Honorable George Barnstone, presiding judge of County Civil Court at Law No. 1 
2

of Harris County, to set aside his February 21, 2018 order (1) denying Allstate’s plea 

in abatement; and (2) awarding real parties in interest Holly Holt and David Cabrera 

$2,500 in attorney’s fees as a sanction against Allstate for filing a frivolous plea. 

We conditionally grant the petition.1

I. BACKGROUND

The underlying case involves a dispute over the amount Allstate paid for Holt 

and Cabrera’s claim for damage to their condominium resulting from Hurricane 

Harvey. On December 12, 2017, Holt and Cabrera filed suit against Allstate for 

breach of contract, fraud, violations of the DTPA, and violations of Chapter 541 of 

the Texas Insurance Code. 

On January 5, 2018, Allstate filed an answer and, on February 5, 2018, a 

verified plea in abatement. Allstate argued in its plea in abatement that Holt and 

Cabrera did not provide written presuit notice in accordance with the Texas 

Insurance Code. Holt and Cabrera filed a response, on February 12, 2018, asserting 

that they had provided presuit notice, and also requesting attorney’s fees as sanctions 

for having to respond to Allstate’s plea, which they argued was frivolous. On 

February 21, 2018, the trial court denied Allstate’s plea in abatement and awarded 

Holt and Cabrera $2,500 in attorney’s fees as a sanction against Allstate for filing a

plea without merit. The order advised that the trial court would strike Allstate’s 

 

1 On May 10, 2018, this court requested a response from Holt and Cabrera to be filed on 

or before May 24,2018. They did not file any response to the petition for writ of mandamus. See

Tex. R. App. P. 52.4 (“The court must not grant relief—other than temporary relief—before a 

response has been filed or requested by the court.”). 
3

answer and a judgment of liability would be entered in favor of Holt and Cabrera if 

Allstate did not pay the attorney’s fees within fifteen days of the order. Allstate paid 

the attorney’s fees. 

In this mandamus proceeding, Allstate asserts that the trial court abused its 

discretion by denying its plea in abatement and sanctioning Allstate for filing a 

baseless plea. 

II. STANDARD OF REVIEW

Generally, a relator seeking mandamus relief must demonstrate that (1) the 

trial court clearly abused its discretion; and (2) the relator has no adequate remedy 

by appeal. In re Nat’l Lloyds Ins. Co., 507 S.W.3d 219, 226 (Tex. 2016) (orig. 

proceeding) (per curiam). A trial court clearly abuses its discretion if it reaches a 

decision so arbitrary and unreasonable as to amount to a clear and prejudicial error 

of law or if it clearly fails to analyze the law correctly or apply the law correctly to 

the facts. In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302–03 (Tex. 2016) 

(orig. proceeding) (per curiam); In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 

379, 382 (Tex. 2005) (orig. proceeding) (per curiam). 

When a claimant fails to give a statutory notice that is a prerequisite to filing 

suit and the trial court denies the defendant’s timely request for abatement, the 

defendant is entitled to seek review of the court’s denial by mandamus. In re 

Cypress Tex. Lloyds, 437 S.W.3d 1, 5 (Tex. App.—Corpus Christi 2011, orig. 

proceeding). When a trial court abuses its discretion by denying a plea in abatement, 

the relator does not have an adequate remedy by appeal. See In re Liberty Mut. Fire 
4

Ins. Co., No. 14-09-00876-CV, 2010 WL 1655492, at *6 (Tex. App.—Houston 

[14th Dist.] Apr. 27, 2010, orig. proceeding) (mem. op.). 

III. ANALYSIS

A. Presuit Notice 

Allstate asserts that Holt and Cabrera did not provide notice of their claims to 

Allstate prior to filing their lawsuit in compliance with the Texas Insurance Code. 

Effective September 1, 2017, the Texas Legislature enacted Chapter 542A of the 

Insurance Code, entitled “Certain Consumer Actions Related to Claims for Property 

Damage.” See Tex. Ins. Code Ann. §§ 542A.001–.007 (West Supp. 2017). Chapter 

542A applies to an action on a claim against an insurer, or an agent, including actions 

alleging breach of contract, negligence, misrepresentation, or breach of a common 

law duty or an action brought under certain subchapters of the Chapters 541 and 542

of the Texas Insurance Code and the Texas Deceptive Trade Practices Act. Tex. Ins. 

Code Ann. § 542A.002(a). 

Section 542A.003(a)–(c) sets forth the following requirements for presuit 

written notice by the claimant:

(a) In addition to any other notice required by law or the applicable 

insurance policy, not later than the 61st day before the date a claimant 

files an action to which this chapter applies in which the claimant seeks 

damages from any person, the claimant must give written notice to the 

person in accordance with this section as a prerequisite to filing the 

action. 

(b) The notice required under this section must provide: 

(1) a statement of the acts or omissions giving rise to the claim; 
5

(2) the specific amount alleged to be owed by the insurer on the claim 

for damage to or loss of covered property; and 

(3) the amount of reasonable and necessary attorney’s fees incurred by 

the claimant, calculated by multiplying the number of hours actually 

worked by the claimant’s attorney, as of the date the notice is given and 

as reflected in contemporaneously kept time records, by an hourly rate 

that is customary for similar legal services. 

(c) If an attorney or other representative gives the notice required under 

this section on behalf of a claimant, the attorney or representative shall: 

(1) provide a copy of the notice to the claimant; and 

(2) include in the notice a statement that a copy of the notice was 

provided to the claimant. 

Tex. Ins. Code Ann. § 542A.003(a)–(c). 

Holt and Cabrera argue they provided sufficient presuit notice in a letter dated 

September 28, 2017, and two emails dated November 1, 2017, and December 4, 

2017. A review of the letter and emails reflects that Holt and Cabrera’s notice does 

not comply with section 542A.003. Therefore, the trial court abused its discretion 

by denying Allstate’s plea in abatement. 

Moreover, when a trial court abuses its discretion by denying a plea in 

abatement, the relator does not have an adequate remedy by appeal. See Liberty 

Mut. Fire Ins. Co., 2010 WL 1655492, at *6. We also conclude that Allstate does 

not have an adequate remedy by appeal. 
6

B. Attorney’s Fees 

The trial court also awarded Holt and Cabrera attorney’s fees as a sanction

against Allstate on the finding that the plea in abatement is frivolous. Because the 

trial court abused its discretion by denying Allstate’s plea in abatement, the trial 

court’s award of attorney’s fees is insupportable. 

IV. CONCLUSION

We conditionally grant Allstate’s petition for writ of mandamus and direct the 

trial court to set aside the February 21, 2018 order. The writ will issue only if the 

trial court fails to act in accordance with this opinion. 

PER CURIAM 

Panel consists of Justices Boyce, Christopher, and Busby.