in Re: Philadelphia Indemnity Insurance Company

Court of Appeals of Texas·Decided July 29, 2017·No. 12-17-00117-CV·Published

Opinion

ACCEPTED 12-17-00117-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 7/31/2017 12:00 AM Pam Estes CLERK

CAUSE NO. 12-17-117-CV

In The FILED IN 12th COURT OF APPEALS Court of Appeals TYLER, TEXAS 7/29/2017 9:28:08 AM for the PAM ESTES Clerk Twelfth Appellate District Tyler, Texas

IN RE:

PHILADELPHIA INDEMNITY INSURANCE COMPANY

RELATOR'S REPLY TO REAL PARTY'S REPLY TO RELATOR'S RESPONSE TO REAL PARTY'S MOTION FOR REHEARING TO THE HONORABALE JUDGES OF SAID COURT:

NOW COMES PHILADELPHIA INDEMNITY INSURANCE CO.,

Relator in the above styled and numbered cause, files this its RELATOR'S

REPLY TO REAL PARTY'S REPLY TO RELATOR'S RESPONSE TO

REAL PARTY'S MOTION FOR REHEARING, demonstrating Real Party's

continuing failure to take responsibility for its own conduct, and would

1 respectfully show unto this Court as follows:

[A] Having Stuck Head in Sand, Claimant Still Refuses to Take Responsibility

Circumstantial evidence often possesses equal or even greater probative

value than direct evidence. Brown v. State, 911 S.W.2d 744, 745-46 (Tex. Cr.

App. 1995). The circumstantial evidence herein demonstrates that Claimant took

its non suit in the trial court after this Court ordered it to respond to Surety's

mandamus petition. Claimant has failed, and continues to fail, to explain the

timing of its action, or to even explain why it took a non suit against Surety.

Likewise, the uncontested evidence demonstrates that Claimant possessed

knowledge of this proceeding, and failed to do anything. This Court received

proof of service, and Real Party has not denied such receipt. To avoid such

failures, Claimant blames this Court for sending the notice to a wrong email.1

Claimant further blames Surety for failing to inform this Court of the non suit,

when Surety disagrees with Claimant's contention on mootness, and the

uncontested evidence concerning the applicable standard of care demonstrates

actual knowledge of this Court's order to respond.2

Indeed, Claimant goes so far as to imply that Surety should have prepared

and filed Claimant's response to Surety's mandamus petition.

1 In the "skeptical words of Saturday Night Live's Church Lady, 'How convenient!'" U.S. v. Nacchio, 2007 WL 841802 at 1 (D.Colo. 2007). 2 Why else would Claimant be receiving filings for this proceeding? 2 "To us, the duty of being informed is tantamount to the duty of taking some

action based on being informed." Peck v. Ray, 601 S.W.2d 165, 168 (Tex. Civ.

App.--Corpus Christi 1980, writ ref'd n.r.e.). Having been informed of the

pendency of this action, and that she was not summarily dismissed, Claimant

should have taken action to file a response. It cannot now shift blame to this Court

and Surety.

[B] Claimant's Silence is Deafening

As pointed out in Surety's rehearing response, the trial court's order is not

moot because Claimant will be forced to file another lawsuit in Henderson County.

Tex. Civ. Prac. & Rem. Code §17.001(a). In response, Claimant concedes that this

Court reached the correct decision, i.e. venue is mandatory outside of Henderson

County.3 Claimant then asserts that mandatory venue can be asserted again, when

it refiles in Henderson County. But Claimant completely ignores the res judicata

effect of the trial court's venue order, despite having been expressly informed of

the applicable law in Surety's response.

As previously noted, a trial court's venue determination possesses preclusive

effect. In re Team Rocket, L.P., 256 S.W.3d 257, 260 (Tex. 2008); Miller v. State

and County Mut. Fire Ins. Co., 1 S.W.3d 709, 712 (Tex. App.--Fort Worth 1999,

pet. denied). The erroneous nature of a judgment or order does not destroy its

3 Claimant does not explain why it filed suit in the wrong venue in the first place. 3 preclusive effect. Schein v. American Restaurant Group, Inc., 852 S.W.2d 496,

497 n. 1 (Tex. 1993). "That the judgment may have been wrong or premised on a

legal principle subsequently overruled does not affect application of res judicata."

Segrest v. Segrest, 649 S.W.2d 610, 612 (Tex. 1983), cert. denied, 464 U.S. 894,

104 S.Ct. 242, 78 L.Ed.2d 232 (1983). Thus, even though the trial court erred, its

venue denial still possesses the effect of authorizing venue in Henderson County.

Claimant never explains why or how res judicata does not apply herein.

Second, more than thirty (30) days have passed since the trial court entered

its order, transferring venue. After thirty (30) days have passed, an order

transferring venue is final and cannot be set aside. In re Team Rocket, L.P., supra;

In re Southwestern Bell Telephone Co., 35 S.W.3d 602, 605 (Tex. 2000).

Claimant never explains why or how such principle does not bar relief herein.

Third, Claimant is requesting that this Court enter a writ of mandamus,

directing the trial court to set aside its order transferring venue. Prior to obtaining

relief, the party seeking relief must present a demand to the trial court (which

Claimant has never done). In re Fain, 514 S.W.3d 917, 919 (Tex. App.--Fort

Worth 2017, no pet.); Newton v. Calhoun, 203 S.W.3d 382, 386 (Tex. App.--El

Paso 2006, no pet). Claimant never explains why or how such principle does

not bar relief herein.

Finally, in its motion for rehearing, Surety pointed out that Brooks County

4 I.S.D. is now a party to this lawsuit, and thus mandatory venue rests in Brooks

County. Claimant's response herein to how such joinder affects this case is

unintelligible. But regardless of such response, Claimant again does not address

the point: this Court possesses not jurisdiction to correct an errorless judgment or

order. Estate of Clifton v. Southern Pac. Transp. Co., 709 S.W.2d 636, 639 (Tex.

1986); Davis v. Bryan & Bryan, Inc., 730 S.W.2d 643, 644 (Tex.1987).

There is one, and only one, way for this controversy to be moot: Claimant

must forever forego its claims against Surety, arising out of this controversy.

However, any such concession is conspicuously absent. As a result, Claimant's

request for a rehearing should be denied.

WHEREFORE, PREMISES CONSIDERED, PHILADELPHIA

INDEMNITY INSURANCE CO., Relator in the above styled and numbered

cause, respectfully prays that Real Party's Motion for Rehearing be DENIED, and

for all other and further relief, either at law or in equity, to which Relator shows

itself justly entitled.

Respectfully submitted,

__/s/__Ricardo A. Ramos__________ Ricardo A.

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