Charles O. "Chuck" Grigson, Gerald Hooks, and Leslie Hooks v. State

Court of Appeals of Texas·Decided August 21, 2015·No. 03-15-00436-CV·Published

Opinion

ACCEPTED 03-15-00436-CV 6602220 THIRD COURT OF APPEALS AUSTIN, TEXAS 8/21/2015 1:52:35 PM JEFFREY D. KYLE CLERK NO. 03-15-00436-CV ___________________________________________________ FILED IN 3rd COURT OF APPEALS IN THE COURT OF APPEALS AUSTIN, TEXAS THIRD JUDICIAL DISTRICT COURT 8/21/2015 1:52:35 PM JEFFREY D. KYLE AUSTIN, TEXAS Clerk

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CHARLES O. “CHUCK” GRIGSON, APPELLANT VS.

THE STATE OF TEXAS, THE TEXAS DEPARTMENT OF INSURANCE, THE TEXAS COMMISSIONER OF INSURANCE; and FARMERS GROUP, INC. ET AL., APPELLEES ___________________________________________________

On Appeal from the 261st Judicial District Court of Travis County, Texas Cause No. D-1-GV-02-002501 ___________________________________________________ APPELLANT GRIGSON’S AMENDED EMERGENCY MOTION TO STAY THE SENDING OF CLASS NOTICE ___________________________________________________ Joe K. Longley Philip K. Maxwell LAW OFFICES OF JOE K. LAW OFFICE OF PHILIP K. LONGLEY MAXWELL State Bar No. 12542000 State Bar No. 13254000 1609 Shoal Creek Blvd. #100 1609 Shoal Creek Blvd #100 Austin, Texas 78701 Austin, Texas 78701 512-477-4444 512-947-5434

Attorneys for Appellant Grigson TO THE HONORABLE COURT OF APPEALS:

COMES NOW, Appellant Charles O. “Chuck: Grigson [“Grigson”] who

files this Amended Emergency Motion to Stay Sending of Class Notice pursuant to

§51.014(a)(3) and (b), Texas Gov’t Code and Rules 9, 10 and 29.5 of the Texas

Rules of Appellate Procedure. Grigson seeks emergency relief pursuant to Rule

10.3(a)(3), Texas Rules of Appellate Procedure, and in support thereof,

respectfully shows the Court the following:

1. Grigson seeks Emergency Relief based upon a new threat made by Farmers

Appellees.

2. On Thursday, August 20, 2015 at approximately 4:44 PM, Counsel for

Grigson received an email containing a letter from M. Scott Incerto, lead counsel

for the Farmers Appellees, making the following threat to the status quo of

Grigson’s (and class members’) rights as they currently are pending before this

Court:

Grigson’s Emergency Motion to Stay the Sending of Class Notice, which also seeks a discretionary stay, remains undecided. In sum, because no stay (automatic or discretionary) is in effect and because Farmers has been expressly ordered to disseminate Class Notice by September 4, 2015, Farmers will proceed with the issuance of Class Notice. The Settlement administrator, Rust Consulting, as Farmers’ agent, will proceed with commencing the printing process for the Class Notice on Tuesday, August 25, 2015, in order to be in a position to place the Class Notice in the mail on September 4, 2015.

Exhibit 1 – Incerto’s letter to counsel for Grigoson (Emphasis added). APPELLANT GRIGSON’S AMENDED EMERGENCY MOTION TO STAY CLASS NOTICE 2 3. Farmers now attempts to disrupt the status quo currently existing in this

appeal by adversely affecting and irreparably harming the rights belonging to

Grigson (and other class members) who seeks to have his appeal decided without

the harm caused by the sending of a class notice. The potential wasting of over

$2.5 million dollars of policyholder funds prior to this Court’s resolution of this

appeal will misinform and confuse the putative class members and interfere with

this Court’s jurisdiction to determine whether the 2015 order before this Court and

the notice that it requires can be sustained:

When a trial court preliminarily certifies a settlement-only class action, the effect on the course of the proceedings is immediate, significant, and perhaps irreparable if it is later determined that the class cannot be maintained.”

McAllen Medical Center, Inc. v. Cortez, 66 S.W.3d 227, 234 (Tex. 2001). (Emphasis added).

4. In July of 2003, this Court issued an order using the exact wording of Cortez

to stop the class notice from being sent in the 2003 settlement. See Exhibit 2.

5. Here, just as in Cortez, Farmers threatens to send notice bearing the “trial

court’s imprimatur” as a fait accompli to prime the class to participate in a

settlement that has not been subject to the stringent requirements of Rule 42, nor to

the appellate review of the trial court’s July 6, 2015 order.

6. Grigson, in responding to the State and Farmers’ Joint Motion to Dismiss for

Lack of Jurisdiction, has detailed the State and Farmers’ unlawful agreement to APPELLANT GRIGSON’S AMENDED EMERGENCY MOTION TO STAY CLASS NOTICE 3 attempt to abrogate this Court’s statutory jurisdiction to decide this case, and the

extraordinary lengths they’ve already taken to implement it. 1

7. Now the aim of Farmers is to unilaterally abrogate this Court’s inherent

jurisdiction “to determine its own jurisdiction” by destroying the status quo

through the sending class notice prior to this Court’s determination of its own

jurisdiction. See Texas Gov’t Code, Section 22.220(c) [“each Court of Appeals

may, on affidavit or otherwise, as the Court may determine, ascertain the matters

of fact that are necessary to the proper exercise of its jurisdiction”]; Dallas County

Appraisal District v. Funds Recovery, Inc., 887 S.W.2d 465, 468 (Tex.App.—

Dallas 1994, writ. denied). [“We must inquire into our own jurisdiction even if it

is necessary to do so sua sponte.”] This is the very jurisdiction Farmers and the

State have invoked with the filing of their Joint Motion to Dismiss.

8. Farmers is likewise attempting to use the trial court’s order in a manner that

“interferes with or impairs the jurisdiction of the appellate court or the

effectiveness of any relief sought or that may be granted on appeal.” Rule 29.5

Texas Rules of Appellate Procedure.

9. Farmers threat not only interferes with the jurisdiction of this Court, but

likewise interferes with the Court’s briefing schedule. By having Rust Associates 1 Appellees have contested this Court’s jurisdiction pursuant to a Motion to Dismiss which has bene fully briefed by the parties and is pending before the Court. See Motion filed July 17, 2015; Grigson’s Response filed July 31, 2015, Appellee’s Reply filed August 12, 2015 and Grigson’s Sur-Reply filed August 14, 2015.

APPELLANT GRIGSON’S AMENDED EMERGENCY MOTION TO STAY CLASS NOTICE 4 (Farmers’ agent) begin the printing of the class notices on August 25, 2015 – the

day before Appellant’s brief is due – August 26, 2015, Farmers interferes with

Grigson’s ability to completely brief all of the issues and comply with the briefing

schedule set by the Court.

Nevertheless, Grigson will endeavor to complete and file his brief on the day

scheduled.

WHEREFORE, PREMISES CONSIDERED, Grigson prays that Court enter

an appropriate order granting this Amended Emergency Motion to Stay the

Sending of Class Notice and that the Court do so post haste to prevent irreparable

harm caused by the destruction of the status quo now existing prior to notice being

sent. Grigson further requests that this Court grant such other and further relief to

which he may show himself justly entitled.

Respectfully submitted,

CHARLES O. “CHUCK” GRIGSON APPELLANT

LAW OFFICES OF JOE K. LONGLEY

_______/s/ Joe K. Longley__________ Joe K. Longley State Bar No. 12542000 1609 Shoal Creek Blvd. #100 Austin, Texas 78701 512-477-4444 PHONE 512-477-4470 FAX

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