in Re Nancy Cantu and Ignacio Cantu

• Court: Court of Appeals of Texas
• Decided: August 2, 2017
• Docket: 13-17-00342-CV
• Status: Published

Opinion

NUMBER 13-17-00342-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

IN RE NANCY CANTU AND IGNACIO CANTU

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Justices Rodriguez, Contreras, and Benavides Memorandum Opinion by Justice Rodriguez1

This original proceeding arises from a dispute between insureds and their insurer

over the appointment of an appraiser under the insurance policy. Following a hail storm,

Nancy Cantu and Ignacio Cantu filed a claim under their homeowner’s insurance policy

with State Farm Lloyds for property damage, and ultimately filed a lawsuit against State

Farm Lloyds regarding their losses. State Farm invoked the appraisal clause in the

insurance policy. The Cantus appointed David Poyner as their appraiser. Poyner had

1 See TEX. R. APP. P. 52.8(d) (“When granting relief, the court must hand down an opinion as in

any other case,” but when “denying relief, the court may hand down an opinion but is not required to do so.”); id. R. 47.4 (distinguishing opinions and memorandum opinions). previously prepared an expert report for the Cantus regarding his estimate of the property

damages that they had incurred. State Farm objected to Poyner’s appointment on

grounds he was not qualified to serve as an appraiser under their insurance policy, which

requires the appointment of a “competent, disinterested appraiser.” After a hearing, the

trial court declined to allow Poyner to serve as an appraiser and ordered the Cantus to

appoint a “competent, disinterested appraiser.” By petition for writ of mandamus, the

Cantus allege that the trial court erred in refusing to allow Poyner to serve “absent any

evidence of actual bias.” This Court requested and received a response to the petition

for writ of mandamus from State Farm Lloyds. See TEX. R. APP. P. 52.2, 52.4, 52.8.

Mandamus is an extraordinary remedy. In re H.E.B. Grocery Co., 492 S.W.3d 300,

302 (Tex. 2016) (orig. proceeding) (per curiam). Mandamus relief is proper to correct a

clear abuse of discretion when there is no adequate remedy by appeal. In re Christus

Santa Rosa Health Sys., 492 S.W.3d 276, 279 (Tex. 2016) (orig. proceeding). The relator

bears the burden of proving both of these requirements. In re H.E.B. Grocery Co., 492

S.W.3d at 302; Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).

An abuse of discretion occurs when a trial court’s ruling is arbitrary and unreasonable or

is made without regard for guiding legal principles or supporting evidence. In re

Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); Ford

Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). We determine the adequacy of

an appellate remedy by balancing the benefits of mandamus review against the

detriments. In re Essex Ins. Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding); In

re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding). The

Texas Supreme Court has held that mandamus relief is appropriate to enforce an

2 appraisal clause. See, e.g., In re Universal Underwriters of Tex. Ins. Co., 345 S.W.3d

404, 412 (Tex. 2011) (orig. proceeding); In re Allstate Cty. Mut. Ins. Co., 85 S.W.3d 193,

196 (Tex. 2002) (orig. proceeding).

The Court, having examined and fully considered the amended petition for writ of

mandamus, the amended response, and the applicable law, is of the opinion that relators

have not shown themselves entitled to the relief sought. Accordingly, we LIFT the stay

previously imposed in this case and we DENY the petition for writ of mandamus. See

TEX. R. APP. P. 52.8(a), 52.10(b).

NELDA V. RODRIGUEZ Justice

Delivered and filed the 2nd day of August, 2017.