Chase Carmen Hunter v. Texas Department of Insurance and David Mattax, in His Official Capacity as Commissioner of Insurance

Court of Appeals of Texas·Decided February 5, 2015·No. 03-14-00737-CV·Published

Opinion

ACCEPTED

03-14-00737-CV

4044822

THIRD COURT OF APPEALS

February 5, 2015 AUSTIN, TEXAS 2/5/2015 4:58:39 PM

JEFFREY D. KYLE

CLERK

No. 03-14-00737-CV

In the Third Court of Appeals RECEIVED IN 3rd COURT OF APPEALS

AUSTIN, TEXAS

Austin, Texas 2/5/2015 4:58:39 PM __________________ JEFFREY D. KYLE Clerk

CHASE CARMEN HUNTER

Appellant,

ELEANOR KITZMAN, JULIA RATHGEBER, AND THE TEXAS DEPARTMENT OF INSURANCE

Appellees.

On Appeal from the 250th Judicial District Court Cause No. D-1-GN-13-001957 Travis County, Texas

APPELLEES’ RESPONSE TO

APPELLANT’S MOTION FOR ASSISTANCE WITH SCHEDULING REQUIRED HEARING IN THE UNDERLYING COURT

TO THE HONORABLE JUSTICES OF THE THIRD COURT OF APPEALS:

Appellees Eleanor Kitzman, Julia Rathgeber, and the Texas Department of

Insurance, file this response to Appellant Chase Carmen Hunter’s Motion for

Assistance with Scheduling Required Hearing in the Underlying Court, and would

respectfully show as follows:

APPELLANT’S MOTION IS MOOT

Appellant requests this Court to order the trial court to communicate with

her in writing in order to set the hearing ordered by this Court in its January 21,

2015 order. But the trial court has already set such hearing for February 18, 2015 at

2:00 p.m. See Exhibit A (Cover Letter and Order Extending Time for Hearing).1

Thus Appellant’s Motion is moot.

RECOMMENDATION OF DISPOSITION UNDER RULE 20.1(h)(2) OR (3)

Although the hearing ordered by this Court has already been set, Appellees

anticipate that further litigation may ensue regarding such setting and respectfully

recommend that this Court withdraw its order setting a hearing, and instead decide

this matter under the provisions of Rule of Appellate Procedure 20.1(h)(2) or (3).

On January 30, 2015, Appellant sent a fax to the District Clerk’s office

demanding that this matter be handled in a particular fashion, including giving her

ten business days to file a written response and to have the hearing set on a date

following the filing of that written response, after a coordination by fax for a date

on which she would be available to testify by telephone. See Exhibit B (Fax from

Appellant to Warren Vavra, Court Administrator, Travis County Civil District

Courts). Compliance with Appellant’s requests are not possible under the timing

provisions of Texas Rule of Civil Procedure Rule 20.1, or under Local Rule 9.1 of

Travis County, which does not permit evidentiary hearings to be conducted by

1 The order was apparently mailed to the parties on January 30, 2015. The undersigned received a copy by fax on February 2, 2015, and as a courtesy, emailed a copy to Appellant on February 4, 2015 after the filing of Appellant’s motion suggested that Appellant had not yet received a copy of the order.

telephone, other than for inmates. 2 Thus the district court will be unable to comply

with Appellant’s requests and Appellant will have to appear in person on February

18, 2015, to present evidence to meet her burden.

Appellees anticipate that Appellant will contest having to appear in person in

Travis County on February 18, 2015. To expedite this matter and conserve judicial

and party resources, Appellees would respectfully suggest that this Court withdraw

its order requiring the trial court to hold an evidentiary hearing, and that this Court

instead either decide the contest based on the affidavit and other filed documents,

as provided by Rule 20.1(h)(2), or request the written submission of additional

evidence, and without conducting a hearing, decide the contest based on the

evidence, as provided for by the provisions of Rule 20.1(h)(3).

PRAYER

WHEREFORE, PREMISES CONSIDERED, Appellees pray this Honorable

Court to dismiss Appellant’s motion as moot, but would recommend that the Court

withdraw the order requiring the trial court to hold an evidentiary hearing and

decide this matter without a hearing under the provisions of either Rule 20.1(h)(2)

or (3).

2 Appellant is not an inmate.

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/ Cynthia A. Morales Cynthia A. Morales Assistant Attorney General Texas State Bar No. 14417420 Financial Litigation, Tax, and Charitable Trusts Division P.O. Box 12548 Austin, Texas 78711-2548 (512) 475-4470 Phone (512) 477-2348 Fax cynthia.morales@texasattorneygeneral.gov

Counsel for Appellees, Eleanor Kitzman, Julia Rathgeber, and the Texas Department of Insurance

CERTIFICATE OF SERVICE

I hereby certify that on this 5th day of February, 2015, the above and foregoing Appellees’ Response to Appellant’s Motion for Assistance in Scheduling Required Hearing in the Underlying Court was filed and served by fax and email on:

Chase Carmen Hunter 340 S. Lemon Avenue #9039 Walnut, CA 91789 chase_hunter@yahoo.com Fax: (703)-997-5999

/s/ Cynthia A. Morales CYNTHIA A. MORALES ri-¡ rt rÀ-l FEE-|¡Z-2þ115 t¡?:12 Tl I5T I:[UF]T ÊDI'l] N ._r1¿ -rF,l üJ+ -r¡D/

lÌf+ Í,v)¿

STATË

Court AdmÍnistråtor's Office Travis Çounty Court House P.0. Box 1748 Austin, Texas 78767

January 30, 2015

Chase Carmen Hu¡rter Cynthia A. Morales 34o S Lemon Ave #9o3g Assistant Attorney General Walnut, C,{ gtz8g P.0. Box rr548 Austin, TX 787rr-e548

Chase Carmen Hunter P.O. Box 4se5z Frederícksburg, VA er4o4

Rç: Cause No. D-l-GN" l3-01¡1957; Chase Ca¡men Hunfer vs. Eleanor Kitzman, et al; In the 25011' District Court of Travis County, Texas

Cor¡nsel and Ms, Hunter:

Enclosed is a file stamped copy of an order settirtg a hearing on the Appellee's Contest to Appellant Çhase CarunÈn Hunter's AfTìdavít of Indigence in the nbove refercnced aausÈ.

Sincerely,

Walren Vavrn Court ¡\dministrutor Travis Çounty Civil District Coltrts

WV/lr

cc: Ms. Antalia Rridriguez-Mendoza, Travis Count¡, District Çlerk

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VS s TRAVIS COUNTY. TEX.AS

ELEÄNOR KITZMAbtr. ET AL f¡ Y 2-íCTH JUDICIAL DISTRICT

SRDER EXTENDING TIME FO

In accoïdânce with the.Tanuary 21,2015 Orcler of the Texns Cìourt of AppÇals,ï^hild

Distriot at Austin, the Çourt hereby extends the time in which to hold a hearing to consider the

nvidence on Appellee 's Contest to Appellarrt Chase Carmen Hunter's Affrtiavit of Indigence.

It is therefore ordered that tlre Appellee 's Contest to Appellant Chase Carmen Hunter's

Affidavit of incligence is hereby set for lrearing on Wednesclay, liebruary i8, 2015 at 2:00 p.m.

The Court Administrator shall set this oause for hearing on thc Travis County Civil

Dístríct Conrt Central Docket a¡d sirall sencl notice by first class tnail to all pro se pailie$ ånd

attorneys of record,

SIGNED this Ja day of 41- ?015

JUD

TÜTf:iL F. Ef,

To: Cynthia l{Orales 0 512-477-2348 From: Fax Sender Pg l/ 2 øl/3Ø/15 5:47 pm

Facsimile Transmittal

FÆ( Morales

To: Gynthia From: Fax Sender Company: TexasAttorneyGeneral Dste:01/30/2015 Fax Numbe¡: 5124772348 Pages: 2 (inoluding cowr)

Re: 3rd Court of Appeals OrderTo Hold Hearing D-l-GN-l3001957

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