ACCEPTED 03-15-00436-CV 6212457 THIRD COURT OF APPEALS AUSTIN, TEXAS 7/24/2015 11:58:32 AM No. 03-15-00436-CV JEFFREY D. KYLE CLERK
In the Third Court of Appeals Austin, Texas FILED IN 3rd COURT OF APPEALS CHARLES O. “CHUCK” GRIGSON; AUSTIN, TEXAS GERALD HOOKS AND LESLIE HOOKS,7/24/2015 11:58:32 AM JEFFREY D. KYLE Appellants, Clerk v. THE STATE OF TEXAS; THE TEXAS DEPARTMENT OF INSURANCE; THE TEXAS COMMISSIONER OF INSURANCE; and FARMERS GROUP, INC., FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY, TEXAS FARMERS INSURANCE COMPANY, FIRE INSURANCE EXCHANGE, ET AL., Appellees.
On Appeal from the 261st Judicial District Court, Travis County, Texas Cause No. D-1-GV-02-002501
APPELLEES’ JOINT MOTION TO DISMISS GERALD AND LESLIE HOOKSES’ APPEAL FOR LACK OF APPELLATE JURISDICTION AND REQUEST FOR EXPEDITED CONSIDERATION OF MOTION
Marcy Hogan Greer Joshua R. Godbey State Bar No. 08417650 State Bar No. 24049996 mgreer@adjtlaw.com joshua.godbey@texasattorneygeneral.gov ALEXANDER DUBOSE JEFFERSON & Ryan S. Mindell TOWNSEND LLP State Bar No. 24089707 515 Congress Ave., Suite 2350 ryan.mindell@texasattorneygeneral.gov Austin, Texas 78701 Jennifer S. Jackson Telephone: 512-482-9300 State Bar No. 24060004 Telecopier: 512-482-9303 jennifer.jackson@texasattorneygeneral.gov OFFICE OF THE ATTORNEY GENERAL M. Scott Incerto P.O. Box 12548 State Bar No. 10388950 Austin, Texas 78711-2548 scott.incerto@nortonrosefulbright.com Telephone: (512) 475-4209 NORTON ROSE FULBRIGHT US LLP Fax: (512) 477-2348) 98 San Jacinto Blvd., Suite 1100 Austin, Texas 78701 COUNSEL FOR PLAINTIFFS-APPELLEES, THE Telephone: 512-474-5201 STATE OF TEXAS, THE TEXAS DEPARTMENT Telecopier: 512-536-4598 OF INSURANCE, AND THE TEXAS COMMISSIONER OF INSURANCE COUNSEL FOR DEFENDANTS-APPELLEES THE FARMERS PARTIES TO THE HONORABLE COURT OF APPEALS:
Appellees, the State of Texas, the Texas Department of Insurance and the
Texas Commissioner of Insurance (jointly, “the State”) and the Farmers Parties 1
(together with the State, the “Settling Parties”) file this Joint Motion to Dismiss
Gerald and Leslie Hookses’ Appeal for Lack of Appellate Jurisdiction and Request
for Expedited Consideration of Motion to show the Court as follows:
ARGUMENT AND AUTHORITIES On July 20, 2015—after the Settling Parties had already filed their Joint
Motion to Dismiss Appellant Charles O. “Chuck” Grigson’s (“Grigson’s”)
appeal—a second set of intervenors, Gerald and Leslie Hooks (“Hookses”), filed a
Notice of Interlocutory Appeal from the district court’s July 6, 2015, Order of
Preliminary Approval. The Hookses’ Notice is identical to the Notice filed by
Grigson on July 15, 2015.2 The Hookses’ appeal is likewise deficient and
1 Farmers Group, Inc., Fire Underwriters Association, Farmers Underwriters Association, Farmers Insurance Exchange, Fire Insurance Exchange, Texas Farmers Insurance Company, Mid-Century Insurance Company of Texas, Mid-Century Insurance Company, Farmers Texas County Mutual Insurance Company, Truck Insurance Exchange, and Truck Underwriters Association 2 Like Grigson’s counsel, the Hookses are also not strangers to the long history of this case, which prevents them (and any others) from pursuing this frivolous interlocutory appeal. The Hookses intervened in this case on May 16, 2003, on the eve of the first preliminary approval hearing; appealed the district court’s original 2003 Order certifying the settlement classes; and exhausted that appeal years later after losing on all their objections before the Texas Supreme Court and this Court. See Farmers Grp., Inc. v. Lubin, 222 S.W.3d 417, 420, 427-28 (Tex. 2007); Lubin v. Farmers Grp., Inc., No. 03-03-00374-CV, 2009 WL 3682602, at *26-32 (Tex. App.—Austin Nov. 6, 2009, no pet.) (rejecting all objections raised by the Hookses and noting improper and should be dismissed on an expedited basis for the same reasons
demonstrated in the Settling Parties’ Joint Motion to Dismiss Appeal for Lack of
Appellate Jurisdiction and Request for Expedited Consideration of Motion, which
was filed on July 20, 2015, and the arguments of which are incorporated here by
reference.
CONCLUSION For these reasons, the Settling Parties request that the Court: (i) expedite
consideration of this request; (ii) grant the Appellees’ Joint Motion to Dismiss
Gerald and Leslie Hookses’ Appeal for Lack of Appellate Jurisdiction; (iii) dismiss
this appeal; and (iv) grant such other and further relief to which the Appellees are
entitled.
their “delay[] [in] becoming involved in this case until right before the certification hearing”). They are, as much as anyone, well aware that the district court certified the classes at issue back in 2003, given their participation in the proceedings that challenged that certification decision at the time.
These and other facts stated in this Motion are in the record, within the Court’s knowledge in its official capacity, or in the personal knowledge of the undersigned, and so, no affidavit in support is needed. TEX. R. APP. P. 10.2.
2 Date: July 24, 2015 Respectfully submitted,
/s/ M. Scott Incerto Marcy Hogan Greer State Bar No. 08417650 mgreer@adjtlaw.com ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP 515 Congress Avenue, Suite 2350 Austin, Texas 78701-3562 Telephone: (512) 482-9300 Facsimile: (512) 482-9303
M. Scott Incerto State Bar No. 10388950 scott.incerto@nortonrosefulbright.com NORTON ROSE FULBRIGHT US LLP 98 San Jacinto Blvd., Suite 1100 Austin, Texas 78701 Telephone: 512-474-5201 Telecopier: 512-536-4598
Darryl W. Anderson State Bar No. 24008694 darryl.anderason@nortonrosefulbright.com Geraldine W. Young State Bar No. 24084134 geraldine.young@nortonrosefulbright.com NORTON ROSE FULBRIGHT US LLP 1301 McKinney, Suite 5100 Houston, Texas 77010 3095 Telephone: 713 651 5151 Telecopier: 713 651 5246
ATTORNEYS FOR DEFENDANTS-APPELLEES FIRE UNDERWRITERS ASSOCIATION, FARMERS GROUP, INC., FARMERS UNDERWRITERS ASSOCIATION, FARMERS INSURANCE EXCHANGE, FIRE INSURANCE EXCHANGE, TEXAS FARMERS INSURANCE COMPANY, MID-CENTURY INSURANCE COMPANY OF TEXAS, MID-CENTURY INSURANCE COMPANY, FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY, TRUCK INSURANCE EXCHANGE, AND TRUCK UNDERWRITERS ASSOCIATION
3 Respectfully submitted,
KEN PAXTON Attorney General of Texas
CHARLES E. ROY First Assistant Attorney General
JAMES E. DAVIS Deputy Attorney General for Civil Litigation
ROBERT O’KEEFE Division Chief Financial Litigation, Tax, and Charitable Trusts Division
/s/ Joshua R. Godbey JOSHUA R. GODBEY Assistant Attorney General LEAD ATTORNEY State Bar No. 24049996 Telephone: (512) 475-4209 joshua.godbey@texasattorneygeneral.gov RYAN S. MINDELL Assistant Attorney General State Bar No. 24089707 Telephone: (512) 936-1721 ryan.mindell@texasattorneygeneral.gov JENNIFER S. JACKSON Assistant Attorney General State Bar No. 24060004 Telephone: (512) 463-9917 jennifer.jackson@texasattorneygeneral.gov Financial Litigation, Tax, and Charitable Trusts Division P.O. Box 12548 Austin, Texas 78711-2548 Fax: (512) 477-2348)
ATTORNEYS FOR PLAINTIFFS-APPELLEES, THE STATE OF TEXAS, THE TEXAS DEPARTMENT OF INSURANCE, AND THE TEXAS COMMISSIONER OF INSURANCE
4 CERTIFICATE OF SERVICE On July 24, 2015, I electronically filed the Appellees’ Joint Motion to
Dismiss Gerald and Leslie Hookses’ Appeal for Lack of Appellate Jurisdiction and
Request for Expedited Consideration of Motion with the Clerk of the Court using
the eFile.TXCourts.gov electronic filing system which will send notification of
such filing to the following (unless otherwise noted below).
Joseph C. Blanks Michael J. Woods P.O. Box 999 8620 N. New Braunfels, Ste.
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ACCEPTED 03-15-00436-CV 6212457 THIRD COURT OF APPEALS AUSTIN, TEXAS 7/24/2015 11:58:32 AM No. 03-15-00436-CV JEFFREY D. KYLE CLERK
In the Third Court of Appeals Austin, Texas FILED IN 3rd COURT OF APPEALS CHARLES O. “CHUCK” GRIGSON; AUSTIN, TEXAS GERALD HOOKS AND LESLIE HOOKS,7/24/2015 11:58:32 AM JEFFREY D. KYLE Appellants, Clerk v. THE STATE OF TEXAS; THE TEXAS DEPARTMENT OF INSURANCE; THE TEXAS COMMISSIONER OF INSURANCE; and FARMERS GROUP, INC., FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY, TEXAS FARMERS INSURANCE COMPANY, FIRE INSURANCE EXCHANGE, ET AL., Appellees.
On Appeal from the 261st Judicial District Court, Travis County, Texas Cause No. D-1-GV-02-002501
APPELLEES’ JOINT MOTION TO DISMISS GERALD AND LESLIE HOOKSES’ APPEAL FOR LACK OF APPELLATE JURISDICTION AND REQUEST FOR EXPEDITED CONSIDERATION OF MOTION
Marcy Hogan Greer Joshua R. Godbey State Bar No. 08417650 State Bar No. 24049996 mgreer@adjtlaw.com joshua.godbey@texasattorneygeneral.gov ALEXANDER DUBOSE JEFFERSON & Ryan S. Mindell TOWNSEND LLP State Bar No. 24089707 515 Congress Ave., Suite 2350 ryan.mindell@texasattorneygeneral.gov Austin, Texas 78701 Jennifer S. Jackson Telephone: 512-482-9300 State Bar No. 24060004 Telecopier: 512-482-9303 jennifer.jackson@texasattorneygeneral.gov OFFICE OF THE ATTORNEY GENERAL M. Scott Incerto P.O. Box 12548 State Bar No. 10388950 Austin, Texas 78711-2548 scott.incerto@nortonrosefulbright.com Telephone: (512) 475-4209 NORTON ROSE FULBRIGHT US LLP Fax: (512) 477-2348) 98 San Jacinto Blvd., Suite 1100 Austin, Texas 78701 COUNSEL FOR PLAINTIFFS-APPELLEES, THE Telephone: 512-474-5201 STATE OF TEXAS, THE TEXAS DEPARTMENT Telecopier: 512-536-4598 OF INSURANCE, AND THE TEXAS COMMISSIONER OF INSURANCE COUNSEL FOR DEFENDANTS-APPELLEES THE FARMERS PARTIES TO THE HONORABLE COURT OF APPEALS:
Appellees, the State of Texas, the Texas Department of Insurance and the
Texas Commissioner of Insurance (jointly, “the State”) and the Farmers Parties 1
(together with the State, the “Settling Parties”) file this Joint Motion to Dismiss
Gerald and Leslie Hookses’ Appeal for Lack of Appellate Jurisdiction and Request
for Expedited Consideration of Motion to show the Court as follows:
ARGUMENT AND AUTHORITIES On July 20, 2015—after the Settling Parties had already filed their Joint
Motion to Dismiss Appellant Charles O. “Chuck” Grigson’s (“Grigson’s”)
appeal—a second set of intervenors, Gerald and Leslie Hooks (“Hookses”), filed a
Notice of Interlocutory Appeal from the district court’s July 6, 2015, Order of
Preliminary Approval. The Hookses’ Notice is identical to the Notice filed by
Grigson on July 15, 2015.2 The Hookses’ appeal is likewise deficient and
1 Farmers Group, Inc., Fire Underwriters Association, Farmers Underwriters Association, Farmers Insurance Exchange, Fire Insurance Exchange, Texas Farmers Insurance Company, Mid-Century Insurance Company of Texas, Mid-Century Insurance Company, Farmers Texas County Mutual Insurance Company, Truck Insurance Exchange, and Truck Underwriters Association 2 Like Grigson’s counsel, the Hookses are also not strangers to the long history of this case, which prevents them (and any others) from pursuing this frivolous interlocutory appeal. The Hookses intervened in this case on May 16, 2003, on the eve of the first preliminary approval hearing; appealed the district court’s original 2003 Order certifying the settlement classes; and exhausted that appeal years later after losing on all their objections before the Texas Supreme Court and this Court. See Farmers Grp., Inc. v. Lubin, 222 S.W.3d 417, 420, 427-28 (Tex. 2007); Lubin v. Farmers Grp., Inc., No. 03-03-00374-CV, 2009 WL 3682602, at *26-32 (Tex. App.—Austin Nov. 6, 2009, no pet.) (rejecting all objections raised by the Hookses and noting improper and should be dismissed on an expedited basis for the same reasons
demonstrated in the Settling Parties’ Joint Motion to Dismiss Appeal for Lack of
Appellate Jurisdiction and Request for Expedited Consideration of Motion, which
was filed on July 20, 2015, and the arguments of which are incorporated here by
reference.
CONCLUSION For these reasons, the Settling Parties request that the Court: (i) expedite
consideration of this request; (ii) grant the Appellees’ Joint Motion to Dismiss
Gerald and Leslie Hookses’ Appeal for Lack of Appellate Jurisdiction; (iii) dismiss
this appeal; and (iv) grant such other and further relief to which the Appellees are
entitled.
their “delay[] [in] becoming involved in this case until right before the certification hearing”). They are, as much as anyone, well aware that the district court certified the classes at issue back in 2003, given their participation in the proceedings that challenged that certification decision at the time.
These and other facts stated in this Motion are in the record, within the Court’s knowledge in its official capacity, or in the personal knowledge of the undersigned, and so, no affidavit in support is needed. TEX. R. APP. P. 10.2.
2 Date: July 24, 2015 Respectfully submitted,
/s/ M. Scott Incerto Marcy Hogan Greer State Bar No. 08417650 mgreer@adjtlaw.com ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP 515 Congress Avenue, Suite 2350 Austin, Texas 78701-3562 Telephone: (512) 482-9300 Facsimile: (512) 482-9303
M. Scott Incerto State Bar No. 10388950 scott.incerto@nortonrosefulbright.com NORTON ROSE FULBRIGHT US LLP 98 San Jacinto Blvd., Suite 1100 Austin, Texas 78701 Telephone: 512-474-5201 Telecopier: 512-536-4598
Darryl W. Anderson State Bar No. 24008694 darryl.anderason@nortonrosefulbright.com Geraldine W. Young State Bar No. 24084134 geraldine.young@nortonrosefulbright.com NORTON ROSE FULBRIGHT US LLP 1301 McKinney, Suite 5100 Houston, Texas 77010 3095 Telephone: 713 651 5151 Telecopier: 713 651 5246
ATTORNEYS FOR DEFENDANTS-APPELLEES FIRE UNDERWRITERS ASSOCIATION, FARMERS GROUP, INC., FARMERS UNDERWRITERS ASSOCIATION, FARMERS INSURANCE EXCHANGE, FIRE INSURANCE EXCHANGE, TEXAS FARMERS INSURANCE COMPANY, MID-CENTURY INSURANCE COMPANY OF TEXAS, MID-CENTURY INSURANCE COMPANY, FARMERS TEXAS COUNTY MUTUAL INSURANCE COMPANY, TRUCK INSURANCE EXCHANGE, AND TRUCK UNDERWRITERS ASSOCIATION
3 Respectfully submitted,
KEN PAXTON Attorney General of Texas
CHARLES E. ROY First Assistant Attorney General
JAMES E. DAVIS Deputy Attorney General for Civil Litigation
ROBERT O’KEEFE Division Chief Financial Litigation, Tax, and Charitable Trusts Division
/s/ Joshua R. Godbey JOSHUA R. GODBEY Assistant Attorney General LEAD ATTORNEY State Bar No. 24049996 Telephone: (512) 475-4209 joshua.godbey@texasattorneygeneral.gov RYAN S. MINDELL Assistant Attorney General State Bar No. 24089707 Telephone: (512) 936-1721 ryan.mindell@texasattorneygeneral.gov JENNIFER S. JACKSON Assistant Attorney General State Bar No. 24060004 Telephone: (512) 463-9917 jennifer.jackson@texasattorneygeneral.gov Financial Litigation, Tax, and Charitable Trusts Division P.O. Box 12548 Austin, Texas 78711-2548 Fax: (512) 477-2348)
ATTORNEYS FOR PLAINTIFFS-APPELLEES, THE STATE OF TEXAS, THE TEXAS DEPARTMENT OF INSURANCE, AND THE TEXAS COMMISSIONER OF INSURANCE
4 CERTIFICATE OF SERVICE On July 24, 2015, I electronically filed the Appellees’ Joint Motion to
Dismiss Gerald and Leslie Hookses’ Appeal for Lack of Appellate Jurisdiction and
Request for Expedited Consideration of Motion with the Clerk of the Court using
the eFile.TXCourts.gov electronic filing system which will send notification of
such filing to the following (unless otherwise noted below).
Joseph C. Blanks Michael J. Woods P.O. Box 999 8620 N. New Braunfels, Ste. 522 Doucette, TX 75942 San Antonio, TX 78217 blanxlex@gmail.com MichaelJWoods@sbcglobal.net
Counsel for Appellants Gerald and Pro Se Intervenor/Objector Leslie Hooks
Joe K. Longley Philip K. Maxwell 1609 Shoal Creek Blvd. # 100 Austin, TX 78701 Joe@JoeLongley.com phil@philmaxwell.com
Counsel for Appellant Charles O. “Chuck” Grigson
/s/ M. Scott Incerto M. Scott Incerto
5 CERTIFICATE OF CONFERENCE I certify that, on July 20, 2015, I conferred with Joseph C. Blanks, counsel
for Gerald and Leslie Hooks, about the merits of the foregoing motion, pursuant to
Texas Rule of Appellate Procedure 10.1(a)(5), and he stated that the Hookses are
opposed to the motion.
CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4(i) I certify that the foregoing document contains 737 words and complies with
the word limit set forth in Texas Rule of Appellate Procedure 9.4(i).