ACCEPTED 14-15-00922-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 10/29/2015 4:02:13 PM CHRISTOPHER PRINE CLERK
No. __________-CV FILED IN 14th COURT OF APPEALS HOUSTON, TEXAS IN THE 10/29/2015 4:02:13 PM ______ COURT OF APPEALS CHRISTOPHER A. PRINE HOUSTON, TEXAS Clerk
IN RE AMERICAN RISK INSURANCE COMPANY, INC.
Original Proceeding from Cause No. 14-DVC-213947 In the 268th District Court of Fort Bend County, Texas Honorable Brady G. Elliot, Presiding Judge
PETITION FOR WRIT OF MANDAMUS
Kevin F. Risley Spencer E. Dunn State Bar No. 16941200 State Bar No. 00797848 Andrew L. Johnson 4669 Southwest Freeway, Suite 700 State Bar No. 24060025 Houston, Texas 77027 George H. Arnold Telephone: (713) 559-0705 State Bar No. 00783559 Facsimile: (713) 481-8768 Thompson, Coe, Cousin & Irons, LLP sdunn@americanriskins.com One Riverway, Suite 1400 Houston, Texas 77056 Telephone: (713) 403-8210 Facsimile: (713) 403-8299 garnold@thompsoncoe.com krisley@thompsoncoe.com ajohnson@thompsoncoe.com
COUNSEL FOR RELATOR AMERICAN RISK INSURANCE COMPANY, INC. IDENTITY OF PARTIES AND COUNSEL
Relator: American Risk Insurance Company, Inc.
Relator’s Counsel: Kevin F. Risley Andrew L. Johnson George H. Arnold Thompson, Coe, Cousin & Irons, LLP One Riverway, Suite 1400 Houston, Texas 77056
Spencer E. Dunn 4669 Southwest Freeway, Suite 700 Houston, Texas 77027
Respondent: The Honorable Brady G. Elliot 268th Judicial District Court Fort Bend County, Texas 301 Jackson Street Richmond, Texas 77469
Real Party in Interest: Hussam Barazi
Real Party in Interest’s Clint Brasher Counsel: Joe Muckleroy P.O. Box 2237 Beaumont, Texas 77704
-i- TABLE OF CONTENTS Page
Identity of Parties and Counsel ................................................................................ i
Table of Contents .................................................................................................... ii
Table of Authorities ................................................................................................ iii
Statement of the Case ...............................................................................................iv
Statement of Jurisdiction ..........................................................................................iv
Issue Presented .......................................................................................................... v
Statement of Facts ..................................................................................................... 1
Summary of Argument ............................................................................................. 4
Argument.................................................................................................................... 5
I. Mandamus Standard ............................................................................. 5
II. The Trial Court Clearly Abused Its Discretion by
Denying ARI’s Motion to Compel Appraisal ....................................... 5
A. Texas Law Strongly Favors Appraisal ....................................... 5
B. Application of Law to Facts ....................................................... 7
III. There Is No Adequate Remedy by Appeal ........................................ 12
Prayer ...................................................................................................................... 12
Certificate of Service .............................................................................................. 14
Certificate of Compliance ....................................................................................... 15
Appendix Trial Court’s Order Denying Motion to Compel Appraisal
- ii - TABLE OF AUTHORITIES Page
In re Allstate Cnty. Mut. Ins. Co., 85 S.W.3d 193 (Tex. 2002) ......................... 5, 12
In re GuideOne Mut. Ins. Co., 09-12-00581-CV, 2013 WL 257371 (Tex. App.—Beaumont Jan. 24, 2013, no pet.) ...................................8, 9, 12
In re GuideOne Nat'l Ins. Co., 07-15-00281-CV, 2015 WL 5766496, (Tex. App.—Amarillo Sept. 29, 2015, no. pet. h.) (mem. op.) .................... 11
In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) ............................... 5
In re Pub. Serv. Mut. Ins. Co., 03-13-00003-CV, 2013 WL 692441, (Tex. App.—Austin Feb. 21, 2013, no pet.) ................................... 7, 8, 9, 10
In re Taylor, 113 S.W.3d 385, (Tex. App.—Houston [1st Dist.] 2003, no pet.) ............................................ 4
In re Texas Windstorm Ins. Ass’n, 14-13-00632-CV, 2013 WL 4806996, (Tex. App.—Houston [14th Dist.] Sept. 10, 2013, no pet.) .................. 10, 12
In re Universal Underwriters of Texas Ins. Co., 345 S.W.3d 404 (Tex. 2011) ...................................................... v, 6, 8, 10, 12
State Farm Lloyds v. Johnson, 290 S.W.3d 886 (Tex. 2009) ...........................10, 11
- iii - STATEMENT OF THE CASE
Underlying Proceeding: This is a suit brought by Real-Party-in-Interest Hussam Barazi for claims allegedly arising from Relator American Risk Insurance Company, Inc.’s handling of an insurance claim.
Respondent: The Honorable Brady G. Elliot, 268th Judicial District Court of Fort Bend County, Texas.
Action from Which On February 20, 2015, the trial court denied Relief Is Sought: Relator’s Motion to Compel Appraisal. R. Tab 5 at MANDAMUS 00189.1
STATEMENT OF JURISDICTION The Court has jurisdiction to issue a writ of mandamus in this case under
Article V, Section 6 of the Texas Constitution, Section 22.221(b)(1) of the Texas
Government Code, and Texas Rule of Appellate Procedure 52.
1 “R.” refers to the Record in Support of Petition for Writ of Mandamus filed with this petition. For the Court’s convenience, the pages of the record are consecutively bates labeled in the lower right-hand corner beginning with MANDAMUS 00001.
- iv - ISSUE PRESENTED Relator American Risk Insurance Company, Inc. is entitled to a writ of
mandamus ordering the trial court to grant Relator’s motion to compel appraisal
because it is well-settled “appraisals can provide a less expensive, more efficient
alternative to litigation, and . . . should generally go forward without preemptive
intervention by the courts.” In re Universal Underwriters of Texas Ins. Co.,
345 S.W.3d 404, 407 (Tex. 2011). Based on the importance and utility of appriasal
clauses, Texas courts routinely grant conditional mandamus relief against trial
courts that refuse to enfore appraisal clauses. Hence, it is inarguable that the trial
court in the present case clearly abused its discretion by denying the motion to
compel appraisal, and there is no adequate remedy by appeal for the erroneous
denial of a motion to compel appraisal.
-v- STATEMENT OF FACTS
Relator American Risk Insurance Company, Inc. (“ARI”) issued a Texas
homeowner’s insurance policy to Real-Party-in-Interest Hussam Barazi, covering
his house (“the Property”) with an effective date of March 27, 2012 through
March 27, 2013 (“the Policy”). R. Tab 1A at MANDAMUS 00009. Pertinently,
the Policy contains the following appraisal provision:
7. Appraisal. If you [Barazi] or we [ARI] fail to agree on the actual cash value, amount of loss, or cost of repair or replacement, either can make a written demand for appraisal. Each will then select a competent, independent appraiser and notify the other of the appraiser’s identity within 20 days of receipt of written demand. The two appraisers will choose an umpire. If they cannot agree upon an umpire within 15 days, you or we may request that the choice be made by a judge of a district court of a judicial district where the loss occurred. The two appraisers will then set the amount of loss, stating separately the actual cash value and loss to each item. If you and we request that they do so, the appraisers will also set: a. The full replacement cost of the dwelling. b. The full replacement cost of any other building upon which loss is claimed. c. The full cost of repair or replacement of loss of such building, without deduction for depreciation. If the appraisers fail to agree, they will submit their differences to the umpire. An itemized decision agreed to by any two of these three and filed with us will set the amount of the loss. Such award shall be binding on you and us. Each party will pay its own appraiser and bear the other expenses of the appraisal and umpire equally. See R. Tab 1A at MANDAMUS 00044–00045.2
2 The appraisal provision located at R. Tab 1A at MANDAMUS 00044–00045 is found within an endorsement that replaces the appraisal clause located at R. Tab 1A at MANDAMUS 00025–
-1- In or around early February 2013, Barazi submitted a claim with ARI for
alleged Property damage caused by a hail storm on June 11, 2012. R. Tab 1B at
MANDAMUS 00063. On February 12, 2013, independent adjuster Chris Cotter
inspected the Property. R. Tab 1C at MANDAMUS 00066–00067. Cotter drafted
an estimate that included amounts to repair certain portions of the Property. R.
Tab 1C. at MANDAMUS 00066. Because Cotter’s estimated allowance for
repairs did not exceed Barazi’s deductible, Cotter recommended ARI not make any
payment. R. Tab 1C at MANDAMUS 00068. On February 15, 2013, ARI sent a
letter to Barazi explaining, “At this time no payment will be issued because the
Actual Cash Value of the repairs is below your deductible.” R. Tab 1D at
MANDAMUS 00119. On or around March 11, 2013, Barazi’s public adjuster
prepared a report containing a preliminary repair cost assessment that exceeded
Cotter’s estimate. R. Tab 1E at MANDAMUS 00136.
Thereafter, Cotter re-inspected the Property and, on May 7, 2013, issued a
supplemental estimate in which he recommended ARI not make any payment
because the loss occurred outside the policy period. R. Tab 1F at MANDAMUS
00137. On May 10, 2010, ARI received a forensic meteorologist’s report that hail
damage did not occur to the Property during the policy period. R. Tab 1G at
MANDAMUS 00163. On May 13, 2013, ARI sent Barazi a letter explaining
00026. For purposes of compelling appraisal and this original proceeding, there is no material difference between the provisions.
-2- Cotter’s and the meteorologist’s findings and advising that ARI would not be
paying Cotter’s claim. R. Tab 1H at MANDAMUS 00167.
Almost a year later, on April 14, 2014, Barazi filed his Original Petition
against ARI, asserting claims for breach of contract, violations of the Deceptive
Trade Practices Act and Texas Insurance Code, breach of the duty of good faith
and fair dealing, and fraud. R. Tab 2 at MANDAMUS 00171. After being served
with the Original Petition, ARI filed an answer. R. Tab 3 at MANDAMUS 00184.
On October 7, 2015, ARI properly transmitted to Barazi notice that ARI was
invoking its contractual right to appraisal. R. Tab 1I at MANDAMUS 00169. On
October 13, 2015, Barazi notified ARI that he was opposed to participating in the
appraisal, arguing that ARI’s demand is untimely and appraisal is inappropriate
because there is no dispute as to the amount of loss. R. Tab 1J at MANDAMUS
00170.
On October 14, 2015, ARI filed its Motion to Compel Appraisal with
supporting exhibits. See R. Tab 1 and R. Tabs 1A–1J. ARI’s Motion to Compel
Appraisal was set for an oral hearing on October 30, 2015 at 9:00 a.m. R. Tab 4 at
MANDAMUS 00187. Nevertheless, prior to the hearing, and before Barazi filed a
response, the trial court sua sponte signed an order on October 22, 2015 denying
the Motion to Compel Appraisal. See R. Tab 5 at MANDAMUS 00189.
-3- On October 27, 2015, Barazi filed a response to the Motion to Compel
Appraisal. R. Tab 6 at MANDAMUS 00190.3
Docket call for this lawsuit is presently set for November 13, 2015, and a
jury trial is set for November 16, 2015. R. Tab 7 at MANDAMUS 00243. This is
the first trial setting. ARI intends on filing in the trial court an emergency motion
to stay trial pending the outcome of this petition for writ of mandamus. If the trial
court denies the emergency motion, ARI intends on filing an emergency motion to
stay with this Court.
SUMMARY OF ARGUMENT
This is a simple petition for the Court to resolve because Texas precedent
inarguably establishes that ARI is entitled to mandamus relief. The trial court
clearly abused its discretion by denying ARI’s Motion to Compel Appraisal
because the appraisal clause was binding and enforceable and had not been waived.
ARI did not unreasonably delay its demand for appraisal. Moreover, Barazi has
not established that he was prejducied by any delay. Finally, ARI has no adequate
3 ARI includes Barazi’s response in the mandamus record as a matter of courtesy. However, the Court may not consider the response in resolving this original proceeding because the response was filed after the trial court issued the order that is the subject of this petition. See In re Taylor, 113 S.W.3d 385, 392 (Tex. App.—Houston [1st Dist.] 2003, no pet.) (“In an original proceeding on petition for writ of mandamus, we must focus on the record that was before the trial court. We will not consider exhibits that were not part of the trial court record at the time of the hearing on the motion that is the subject of this original proceeding.” (citation omitted)). Regardless, none of the arguments raised or evidence cited in the response defeats ARI’s right to invoke appraisal.
-4- remedy by appeal because the trial court’s denial vitiated ARI’s ability to defend
against Barazi’s claims.
ARGUMENT
I. Mandamus Standard
To be entitled to mandamus relief, a litigant must show (1) the trial court
clearly abused its discretion and (2) there is no adequate remedy by appeal. In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004).
II. The Trial Court Clearly Abused Its Discretion by Denying ARI’s Motion to Compel Appraisal
A. Texas Law Strongly Favors Appraisal
Over a decade ago, the Supreme Court of Texas considered an insurers’
request for mandamus relief regarding the trial court’s denial of the insurers’
motion to compel appraisal. In re Allstate Cnty. Mut. Ins. Co., 85 S.W.3d 193
(Tex. 2002). The subject insurance policy contained an appraisal clause which
could be invoked by the insurers or insureds (as does Barazi’s Policy). Id. at 195.
The insureds filed suit against the insurers, asserting claims for fraud, violations of
the Deceptive Trade Practices Act and Texas Insurance Code, breach of the duty of
good faith and fair dealing, breach of contract, and civil conspiracy. Id.
Thereafter, the insurers filed a motion to compel appraisal. Id. The trial court
denied the motion, concluding it was unenforceable as a matter of law. Id.
-5- In a straightforward and simple opinion, the Supreme Court held that the
trial court clearly abused its discretion because Texas has long enforced appraisal
clauses. Id. at 195–96. The Court also held that no adequate appellate remedy
existed because preventing the insurers from exercising their contracted-for right to
appraisal vitiated their ability to defend against the insureds’ claim for breach of
contract. Id. at 196.
In 2011, the Supreme Court again conditionally granted an insurer’s request
for mandamus relief from the trial court’s denial of a motion to compel appraisal.
In re Universal Underwriters of Texas Ins. Co., 345 S.W.3d 404 (Tex. 2011). In
addressing whether the insurer waived its right to invoke the appraisal clause, the
Court explained the significant benefit of appraisal: “Appraisals can provide a less
expensive, more efficient alternative to litigation, and . . . should generally go
forward without preemptive intervention by the courts.” Id. at 407 (citation
omitted) (noting further, “Indeed, appraisals have proceeded for well over a
century with little judicial involvement.”).
The Court, recognizing that waiver is the intentional relinquishment of
known right or intentional conduct inconsistent with claiming that right,
determined that a party may waive its right to appraisal if the party does not invoke
the clause within a reasonable time after the “point of impasse.” Id. at 408–10.
-6- The Court defined “impasse” as “a mutual understanding that neither [party] will
negotiate further.” Id. at 410.
The Court also held that, before waiver is established, the party claiming
waiver must prove it was prejudiced by the other party’s unreasonable delay in
demanding appraisal. Id. at 411. “If the insured has suffered no prejudice due to
delay, it makes little sense to prohibit appraisal when it can provide a more
efficient and cost-effective alternative to litigation.” Id.
B. Application of Law to Facts
It was Barazi’s burden to prove that ARI waived its right to invoke the
appraisal process. In re Pub. Serv. Mut. Ins. Co., 03-13-00003-CV, 2013 WL
692441, at *5 (Tex. App.—Austin Feb. 21, 2013, no pet.) (“[T]the burden of
showing waiver is on the party challenging the right to appraisal.”). It is
inarguable Barazi did not meet this burden because he did not file a response to
ARI’s Motion to Compel appraisal prior to the trial court’s denial of the motion.
Moreover, the mandamus record proves ARI did not waive appraisal.
First, impasse never occurred before ARI demanded appraisal. Impasse did
not occur in May 2013 when ARI sent its decision letter to Barazi because nothing
in the letter affirmatively indicated ARI would not consider additional requests for
resolution. In fact, ARI expressly stated additional information would be
considered:
-7- If there is information you think was not considered, please submit for us to review. By specifying these grounds, [ARI] does not intend to waive, but hereby expressly reserves all of its rights and defenses under this insurance policy. Because you are a valued customer, it is important to us that you fully understand the information provided herein. If you have any questions concerning this matter, please contact us.
R. Tab 1H at MANDAMUS 00168; see In re Pub. Serv., 2013 WL 692441, at *6
(concluding insurer did not unconditionally deny claim because “[insurer] invited
further information to evaluate the claim in the event of [insured’s] disagreement
with [insurer’s] estimate of the loss”). There is nothing else in the mandamus
record that indicates either party made an unconditional denial of recovery prior to
ARI demanding appraisal. See Universal Underwriters, 345 S.W.3d at 410
(recognizing neither party ever expressed that it refused to discuss resolution
further); In re GuideOne Mut. Ins. Co., 09-12-00581-CV, 2013 WL 257371, at *1
(Tex. App.—Beaumont Jan. 24, 2013, no pet.) (per curiam) (“The mandamus
record contains no explicit rejection of appraisal by GuideOne.”). “We will not
infer waiver where neither explicit language nor conduct indicates that such was
the party’s intent.” Universal Underwriters, 345 S.W.3d at 410.
Second, even if impasse did occur at the time Barazi filed suit in April 2014
(or before), ARI did not wait an unreasonable length of time to demand appraisal
by making demand in October 2015. The Beaumont Court of Appeals has held
that an insurer did not wait an unreasonable time to invoke appraisal when it made
-8- its demand over four years after suit was filed and two months before the trial
setting. In re GuideOne, 2013 WL 257371, at *1–2. There, the insurer filed an
answer in 2007 but did not invoke the appraisal process until May 2012, shortly
before the July 2012 trial setting. Id. Nevertheless, the court of appeals explained
that no evidence supported waiver because nothing in the mandamus record proved
the insurer made an explicit rejection of appraisal. Id. at *1.
Similarly, the Austin Court of Appeals concluded that, even if impasse
occurred when suit was filed in March 2012, an insurer’s invocation of appraisal
on September 19, 2012—one month before the October 22, 2012 trial setting—was
not made an unreasonable time after impasse. In re Pub. Serv., 2013 WL 692441,
at *2, *5. Furthermore, as in both In re GuideOne and In re Public Service, the
appraisal clause in the Policy here placed no time limit on when appraisal could be
invoked. See 2013 WL 257371, at *1; 2013 WL 692441, at *5.
Third, even if ARI did wait an unreasonable time after impasse to demand
appraisal, no waiver occurred because Barazi has not met his burden of
establishing that the delay caused him prejudice. There is nothing in the
mandamus record that supports a finding of prejudice. Further, the Supreme Court
has recognized the seeming impossibility of proving prejudice when the appraisal
clause provides both parties an equal ability to demand appraisal:
Moreover, it is difficult to see how prejudice could ever be shown when the policy, like the one here, gives both sides the same
-9- opportunity to demand appraisal. If a party senses that impasse has been reached, it can avoid prejudice by demanding an appraisal itself. This could short-circuit potential litigation and should be pursued before resorting to the courts.
In re Universal Underwriters, 345 S.W.3d at 412.
Fourth, the appraisal process was not waived or rendered inapplicable on the
basis that ARI is contesting coverage only and not the amount of any loss. First,
this is incorrect. There is no evidence in the mandamus record that proves ARI
definitively agrees in whole or part with Barazi’s public adjuster’s damages
estimate. Instead, the evidence shows there is a disparity between Cotter’s
estimate and the public adjuster’s estimate. Compare R. Tab 1C, with R. Tab 1E.
Moreover, even if coverage is disputed, ARI is still entitled to invoke the
appraisal process: “Any appraisal necessarily includes some causation element
because setting the ‘amount of loss’ requires appraisers to decide between damages
for which coverage is claimed from damages caused by everything else.” State
Farm Lloyds v. Johnson, 290 S.W.3d 886, 892 (Tex. 2009). “Appraisers must
allocate damages between covered and excluded perils; causation always is a
consideration because an appraisal is for damages caused by a particular
occurrence.” In re Texas Windstorm Ins. Ass’n, 14-13-00632-CV, 2013 WL
4806996, at *2 (Tex. App.—Houston [14th Dist.] Sept. 10, 2013, no pet.) (per
curiam) (mem. op.); In re Pub. Serv., 2013 WL 692441, at *4 (“[C]ausation must
always be a consideration for appraisers, at least initially, because an appraisal is
- 10 - for damages caused by a particular occurrence, not every repair that a property
might require.”). Obviously, if appraisals were limited to a determination of
damages without consideration of whether the damages were covered, the appraisal
would be useless to the parties:
[If] appraisers can never allocate damages between covered and excluded perils, then appraisals can never assess hail damage unless a roof is brand new. That would render appraisal clauses largely inoperative, a construction we must avoid.
Johnson, 290 S.W.3d at 892–93.
Fifth and finally, regardless of ARI’s actions, ARI did not waive its right to
appraisal because of the Policy’s non-waiver clause:
4. Waiver or Change of Policy Provisions. Changes in this policy may be made and perils added only by attaching a written endorsement properly executed by our authorized agent. No provision of this policy may be waived unless the terms of the policy allow the provision to be waived. Our request for an appraisal or examination will not waive any of our rights.
See R. Tab 1A at MANDAMUS 00033. The Policy contains no endorsement
waiving or removing the appraisal clause.
Only one month ago, the Amarillo Court of Appeals recognized that non-
waiver clauses “have long been held to be valid” and, because the policy contained
a similar non-waiver clause, held that the trial court clearly abused its discretion by
finding the insurer waived appraisal. In re GuideOne Nat’l Ins. Co., 07-15-00281-
CV, 2015 WL 5766496, at *3 (Tex. App.—Amarillo Sept. 29, 2015, no. pet. h.)
- 11 - (mem. op.); see also In re GuideOne Mut. Ins. Co., 2013 WL 257371, at *1 (“The
policy also expressed the parties’ intention that waiver not be implied, as the
insurance policy expressly provides that the policy’s terms ‘can be amended or
waived only by endorsement issued by us and made a part of this policy.’”).
In sum, for the foregoing five separate reasons, the trial court clearly abused
its discretion by denying ARI’s Motion to Compel Appraisal.
III. There Is No Adequate Remedy by Appeal
ARI cannot obtain any adequate remedy by appeal because it is well-settled
that a trial court’s denial vitiates an insurer’s ability to defend against the insured’s
breach-of-contract claims. See In re Allstate, 85 S.W.3d at 196 (holding no
adequate appellate remedy existed because trial court’s denial of motion to compel
appraisal vitiated insurer’s ability to defend against the insureds’ claim for breach
of contract); see also In re Universal Underwriters, 345 S.W.3d at 412 (same); In
re Texas Windstorm, 2013 WL 4806996, at *1–2 (same). “[D]enying an appraisal
altogether deprives [an insurer] of a contractual right that cannot be remedied by
appeal.” In re GuideOne, 2013 WL 257371, at *2. Therefore, ARI has proved it
has no adequate remedy by appeal.
PRAYER
The trial court clearly abused its discretion by denying Relator American
Risk Insurance Company, Inc.’s Motion to Compel Appraisal and there is no
- 12 - adequate appellate remedy for this erroneous ruling. Accordingly, Relator
respectfully requests that the Court grant this Petition, order the trial court (1) to
withdraw its October 20, 2015 order denying the Motion to Compel Appraisal, (2)
to enter an order granting the Motion to Compel Appraisal, and (3) grant Relator
all other relief to which they are justly entitled, including an award of their costs.
Respectfully submitted,
/s/ Kevin F. Risley__________________ Kevin F. Risley State Bar No. 16941200 Andrew L. Johnson State Bar No. 24060025 George H. Arnold State Bar No. 00783559 Thompson, Coe, Cousin & Irons, LLP One Riverway, Suite 1400 Houston, Texas 77056 Telephone: (713) 403-8210 Facsimile: (713) 403-8299 garnold@thompsoncoe.com krisley@thompsoncoe.com ajohnson@thompsoncoe.com
Spencer E. Dunn State Bar No. 00797848 4669 Southwest Freeway, Suite 700 Houston, Texas 77027 Telephone: (713) 559-0705 Facsimile: (713) 481-8768 sdunn@americanriskins.com
COUNSEL FOR RELATOR AMERICAN RISK INSURANCE COMPANY, INC.
- 13 - CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing was served on the following via certified mail, return receipt requested, on this, the 29th day of October 2015.
The Honorable Brady G. Elliot 268th Judicial District Court Fort Bend County, Texas 301 Jackson Street Richmond, Texas 77469 Respondent
Clint Brasher Joe Muckleroy P.O. Box 2237 Beaumont, Texas 77704 Counsel for Real Party in Interest
/s/ Kevin F. Risley_____________________ Kevin F. Risley
- 14 - CERTIFICATE OF COMPLIANCE
The undersigned attorney certifies that this computer-generated document has a word count of approximately 4,249 words, based upon the representation provided by the word processing program that was used to create the document.
/s/ Kevin F. Risley Kevin F. Risley
- 15 - VERIFICATION
STATE OF TEXAS § § COUNTY OF HARRIS§
Before me, the undersigned authority, on this day personally appeared Spencer E. Dunn who, after being duly swom upon his oath, stated as follows:
1. My name is Spencer E. Dunn. I am over the age of twenty-one, of sound mind, and in all ways competent to make this affidavit.
2. I am one of the attomeys of record for Relator American Risk Insurance Company, Inc. in the underlying case that gave rise to this proceeding.
3. I have read the foregoing Petition for Writ of Mandamus. The factual allegations set forth in the Petition are within my personal knowledge, based upon my involvement in the case. Every factual statement in the Petition is supported by competent evidence included in the record.
4. All of the information set forth in this verification is within my personal knowledge and is true and correct.
.Spen~Dunn \
Subscribed and swom to before me on October1i_, 2015. APPENDIX MANDAMUS 00189 Local Rule Notice of and Assignment of Related Case in Appeals
As required by the Local Rules Relating to Assignment of Related Cases to and Transfers of Related Cases between the First and Fourteenth Courts of Appeals, I certify that the following related appeal or original proceeding has been previously filed in either the First or Fourteenth Court of Appeals:
[X] None
[] Caption: _________________________________
Trial court case number: _________________________________
Appellate court case number: _________________________________
/s/ Andrew L. Johnson _ [Signature of certifying attorney or pro se party]
October 29, 2015 [Date]