in Re: Allstate Fire and Casualty Insurance Company and Latina Foster

• Court: Court of Appeals of Texas
• Decided: April 12, 2021
• Docket: 05-20-00801-CV
• Status: Published

Opinion

DENY and Opinion Filed April 12, 2021

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-20-00801-CV

IN RE ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY AND LATINA FOSTER, Relators

Original Proceeding from the County Court at Law No. 5 Dallas County, Texas Trial Court Cause No. CC-20-00179-E

MEMORANDUM OPINION Before Justices Osborne, Reichek, and Smith Opinion by Justice Smith Before the Court are relators’ petition for writ of mandamus, real party’s

response, and relators’ reply to the response. Relators contend they are entitled to

mandamus relief because the trial court abused its discretion by denying their special

exceptions complaining about real party’s failure to plead a claim for breach of

contract, and by failing to quash relator Latina Foster’s deposition because it is

premature. Entitlement to mandamus relief requires relators to show both that the

trial court clearly abused its discretion and that relators have no adequate appellate

remedy. In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig.

proceeding). Although we question the scope of the identified deposition topics, based on relators’ arguments and the record, we conclude relators have failed to

show a clear abuse of discretion. Further, in light of the Texas Supreme Court’s

recent opinion in In re State Farm Mutual Automobile Insurance Co., No. 19-0791,

2021 WL 1045651 (Tex. Mar. 19, 2021) (orig. proceeding), the trial court did not

abuse its discretion by denying relators’ special exceptions. Id. (concluding insurer

not required to plead a breach of contract claim to recover for extra-contractual

claims).

According, we deny relators’ petition for writ of mandamus.

/Craig Smith/ CRAIG SMITH JUSTICE

200801F.P05

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