League City v. Texas Windstorm Insurance Association

Opinion

ACCEPTED

01-15-00117-CV

FIRST COURT OF APPEALS

HOUSTON, TEXAS

2/26/2015 10:15:43 AM

Appellate Docket Number: Ol-15-00117-CV CHRISTOPHER PRINE CLERK

Appellate Case Style: League City

Vs,

':rexa~ WindstbnTI Insurance Association FILED IN

Companion Case No,: 1st COURT OF APPEALS HOUSTON, TEXAS

2/26/2015 10:15:43 AM CHRISTOPHER A. PRINE

Amended/corrected statement: DOCKETING STATEMENT (Civil) Clerk

Appellate Court: ,lstCourt of Appeals (to be filed in the court of appeals upon perfection of appeal under TRAP 32)

I. Appellant . Appclla'nt Attol'ney(s)

o Person IX] Organization (choose one) IX] Lead Attorney Organization Name: LeagjlJe City First Name: Jelmifer First Name: Middle Name: Bnlch

Middle Name: Last Name: Hogan

Last Name: Suffix:

Suffix: Law Firm Name: tIoga'n & Hogan

Pro Se: 0 Address 1: J?elmzoil Place Address 2: 71t Louisiana; Suite 500 City: Houston State: Texas Zip+4: 77002' Telephone: j 13-222~8800 . ext. ' Fax: Email: jnbgan@hoganflrm,coin··

SBN: 03239100

I. Appellant II.

Person 0 Organization (choose one) o Lead Attorney

First Name: Ri~hai'l:l First Name: Middle Name: ]5;

Middle Name: Last Name: Hogail Last Name: Suffix: Jr. Suffix: Law Firm Name: Hogan & Hogan

Pro Se: 0 Address 1: Pcnllzoil Place ..

Address 2: 111 Louisi1\na, Sllite 500

City: Houston State: Texas· Telephone: 713.222 . 8800 ext. Fax: 713.222.8810 Email: rhogal1@hoganfini1 . c01l1 SBN: 09~S02010

I. Appellant II. Appellant Aftorney(s)

D Person D Organization (choose one) D Lead Attorney First Name: Gregory First Name: Middle Name: F; Middle Name: Last Name: Cox Last Name: Suffix: Suffix: Law Firm Name: The Mostyn Law Firnl

Pro Se: 0 Address 1: 6280 Delaware Street Address 2: City: 13eaumont State: Texas Zip+4: rn706 Telephone: 4b9.832.2777 ext. Fax: 409.832.2703 Email:gfccix@mostynlaw.com. SBN: 00793561 .

I .. Appellant n. D Pcrson D Organization (choose one) D Lead Attorney First Name: Rene First Name: Middle Name: Mi Middle Name: Last Name: Sigman

Last Name: Suffix:

Suffix: Law Firm Name: ,;[,heMostyn Law Firm

Pro Se: 0 Address] : 5810 W. Alabama Address 2: City: Houston State: Texa~ Zip+4: 77027 Telephone: 713.861.6616 ext. Fax: 713.861.8084 Email: l.111Sigman@niostynlaw.c01l1 SBN: 24037492

T. Appellant n. Appellant Attorney(s) o Person 0 Organization (choose one) o Lead Attorney First Name: Randal.

First Name: Middle Name: G. Middle Name: Last Name: Cashiola Last Name: Suffix: Suffix: Law Firm Name: Cashiola &Bean

Pro Se: 0 Address 1: 2090 Broadway Street, Suite A Address 2: City: Bealrmcint State: Texas Zip+4: 77101. Telephone: 409.813.1443 ext. Fax: 409.813.1467 Email: rcashiola@cashiolabeanlaw.col11 SBN: 03966802

IV.·· Appell~c Aottorficy(s)

o Person lZl Organization (choose one) lZl Lead Attorney Organization Name: Texas Windstorm Insui'mlce Association First Name: Dale First Name: Middle Name: Middle Name: Last Name: Wainwright Last Name: Suffix: Suffix: Law Finn Name: Eracewell & Giuliahi LLP Pro Se: 0 Address 1: :tTl Louisiana Street,Sllite 2300 Address 2: City: Bouston State: Texas Zip+4: ']7002 Telephone: 713.2232300 ext. Fax: 800.404.3970 Email: dale.wainwright@bgllp.col11 SBN: 00000049

III. Appellee o Person DOrganization (choose one) o Lead Attorney First Name: Andrew First Name: Middle Name: T. Middle Name: Last Name: McKinney Last Name: Suffix: III.

Suffix: Law Firm Name: LITCHFIELD CAVO LLP Pro Se: 0 Address I: OlleRivt;fWay, SU.ite 1 000 Address 2: City: Houston State: Texas Zip+4: 77056 Telephone: 713.418.2000. ext. Fax: 713.418.2001 Email: mckinney@litchfieldcs,vo.COlli SBN: 1371680'0

nr.Appellee IV. Appelletl AttorneY(s)' D Person DOrganization (choose one) D Lead Attorney First Name: Jiniii,es First Name: Middle Name: R.

Middle Name: Last Name: Old

Last Name: Suffix: Jr; Suffix: Law Firm Name: Jay:,Old &Associates;PLLC

Pro Se: 0 Address 1: i615 Calder Avenue, Suite· 720 •

Address 2: City: Beaumont . State: Texas Zip+4: 77702 Telephone: 409~241-7252 ext. Fax: 409~419-1733

Email: jay;old@jroldlaw.com SBN: 15242500

V.Perfection Of Appeal And Jurisdiction

Nature of Case (Subject matter or type of case): Other

Date order or judgment signed: Noveli:iber 13, 2014 Type of judgment: J'uryTriaJ Date notice of appeal filed in trial court: Febr(~ary6, 201$ If mailed to the trial court clerk, also give the date mailed:

Interlocutory appeal of appealable order: DYes fZl No [I' yes, please specify statl1tory or other basis on which interlocutory order is appealable (See TRAP 28):

Accelerated appeal (See TRAP 28): DYes fZl No If yes, please specify statutory or other basis on which appeal is accelerated:

',' " ,e ' , '

Parental Termination or Child Protection? (See TRAP 28.4): DYes ~No

Permissive? (See TRAP 28.3): DYes fZl No If yes, please specify statutory or other basis for such status:

Agreed? (See TRAP 28.2): DYes fZl No Tfyes, please specify statutory or other basis for such status:

Appeal should reeeive prccedence, preference, or priority under statute or rule: DYes fZl No If yes, please specify statutory or other basis for such status:

Docs this case involve an amount under $1 OO,OOO? DYes IZl No Judgment or order disposes of all parties and issues: fZl Yes DNo Appeal from final judgment: fZl Yes D No Does the appeal involve the eonstitutionality or the validity of a statute, rule, or ordinance? DYes IZlNo

VI. Actions Extending Time To Perfect Appeal

Motion for New Trial: fZlYes DNa If yes, date filed: Noveinber14,2014 Motion to Modify Judgment: DYes DNo If yes, date filed: Request for Findings of Fact Yes No If yes, date filed: . and Conclusions of Law:

DYes DNo II' yes, date fi led:

Motion to Reinstate:

[J Yes No If yes, date filed:

Motion under TRCP 306a: Other: fZl Yes DNo Ifother, please specify: Motion to Disregard Certain Jury Findings and Render Judgment on Remaining Findings

VIJ. Indlgency OfPal'ty:(Attacll flte-stlimpedcopyof affidavit, and extension motion if filed.)

Affidavit filed in trial courl: Yes IZl No If yes, date filed:

Contest filed in trial court: DYes No [1' yes, date filed:

Date ruling on contest due:

Rul ing on contest: D Sustained D Overruled Date of ruling:

VIII. Banl<ruptcy

I-las any party to the court's judgment filed for protection in bankruptcy which might affect this appeal? DYes IZI No If yes, please attach a copy of the petition.

Date bankruptcy filed: Bankruptcy Case Number:

IX. Trial Court And Record .. ..

Court: 10th District Court Clerk's Record: County: Galveston Trial Court Cleric IZI District 0 County Trial Court Docket Number (Cause No.): 12~CVc0053 Was clerk's record requested? IZI Yes 0 No

If yes, date requested: Febmary16,2015 Trial Judge (who tried or disposed of case): If no, date it will be requested: First Name: .Kerry Were payment arrangements made with clerk? Middle Name: 1. IZIYes ONo 0 Indigent Last Name: Neves (Note: No request "cquircd undcr TRAP 34.5(a),(b))

Suffix: Address 1: 600 59th Street, Suite 4305 Address 2 : City: Galveston State: Texas Zip + 4: 77551 Telephone: 409'.766.2230 ext. Fax: 409.770.5266 Email:

Reporter's or Recorder's Record:

Is there a reporter's record? IZIYes No Was reporter's record requested? IZIYes ONo

Was there a reporter's record electronically recorded? Yes [S] No If yes, date requested: February16, 2015

Ifno, date it will be requested: Were payment arrangcments made with the court reporter/court rccorder? IZIYes 0 No OIndigent

IZl Court Reporter D Court Recorder IZl Official D Substitute

First Name: Gail Middle Name: Last Name: Jahtfka Suffix: Address I: 10th Judicial District Court Address 2: 600 59thStrect Suite 4305 City: Galveston State: Texas Zip + 4: 17551 Telephone: 409.766.2230 ext. Fax: 409.770.5266 Email: gaH.jalutka@co.galveston.tx;us

X. Supersedeas Bond Supersedeas bond filed: DYes IZl No If yes, date filed:

Will file: Yes IZl No

~I.. Extraordinary Relief

Will you request extraordinary relief (e.g. temporary or ancillary relief) fr0111 this Court? DYes IZl No Tfyes, briefly state the basis for your request:

XII; Alternative Dispute Resolution/MediuJion (Complete seetiori inmnglilthelsf,2nd,4th, 5th,6Ht, Sth, 9th;10tn,lltli, 12th, 13th,· or 14th Court of Appeul) .. .. .

Should this appeal be refcrred to mediation?

IZl Yes D No

Ifno, please specify: Has the case been through an ADR procedure? DYes IZl No If yes, who was the mediator? What type of ADR procedure? At what stage did the case go through ADR? D Pre-Trial D Post-Trial D Other If other, please specify: Type of case? Contract and Insurance Code Claims Give a brief description of the issue to be raised on appeal, the relief sought, and the applicable standard for review, if known (without prejudice to the right to raise additional issues or request additional relief): Whether the trial court correctly disregarded the jury's coritract and Insurance Code findings and rendered judgment in favor of TWIA.

How was the case disposed of? Trial Summary of relief granted, including amount of money judgment, and if any, damages awarded. Tako·nothing mov If money judgment, what was the amount? Actual damages: $0.00 Punitive (or similar) damages: $0,00

Attorney's fees (trial): $0.00 Attorney's fees (appellate): $0.00 Other: $23,187.32 If other, please specify: Court costs assessed against teague City

Will you challenge this Court's jurisdiction? DYes !XI No Does judgment have language that one or 1110re parties "take nothing"? !XI Yes D No Does judgment have a Mother Hubbard clause'? !XIYes No Other basis for finality? Rate the complexity of the case (use I for least and 5 for 1110st complex): D I D 2 D 3 !XI 4 D 5 Please make my answer to the preceding questions known to other parties in this case. !XIYes D No Can the parties agree on an appellate mediator? !XI Yes D No If yes, please give name, address, telephone, fax and email address: Name Address Telephone Fax Email

Languages other than English in which the mediator should be proficient: None Name of person filing out mediation section of docketing statement: Jelmifer Bruch Hogan

XIII. Related Matters List any pending or past related appeals before this or any other Texas appellate court by court, docket number, and style.

Docket Number: 01~13-00866-CV Trial Court: ,Frrstcourt of Appeals

Style: In re TexasWilldstornlInsurance Association

VS.

XIII. Related Matters

List any pending or past related appeals before this or any other Texas appellate court by court, docket number, and style.

Docket Number: 01-14-00318-CV Trial Court: First Court of Appeals

Style: In 1'e texas Windstomllnsurance Association

VS.

XIV .. Pro Bono Program: (Complete section if' filing in the 1st, 3rd, 5th, 01' 14thCouI'ts of Appeals)

The Courts of Appeals listed above, in conjunction with the State Bar of Texas Appellate Section Pro Bono Committee and local Bar Associations, are conducting a program to plaec a limited number of civil appeals with appellate counsel who will represent the appellant in the appeal before this Court.

The Pro Bono Committee is solely responsible for screening and selecting the civil cases for inclusion in the Program based upon a number of discretionary criteria, including the financial means of the appellant or appellee. If a case is selected by the Committee, and can be matched with appellate counsel, that counsel will take over representation of the appellant or appellee without charging legal fees. More information regarding this program can be found inthe Pro Bono Program Pamphlet available in paper form at the Clerk's Office or on the Internet at www.tex-app.org. Tfyour case is selected and matched with a volunteer lawyer, you will receive a letter fro111 the Pro Bono Committee within thirty (30) to forty-five (45) days after submitting this Docketing Statement. Note: there is no guarantee that if you submit your case foJ' possible inclusion in the Pro Bono Program, the Pro Bono Committee will select your case and that pro bono counsel can bc found to represent YOl!o Accordingly, you should not forego seeking other counsel to represent you in this proceeding. By signing your name below, you are authorizing the Pro Bono committee to transmit publicly available facts and infom1ation about your case, including parties and background, through selected Internet sites and Listserv to its pool of volunteer appellate attorneys. Do you want this case to be considered for inclusion in the Pro Bono Program? Yes IZl No

Do you authorize the Pro Bono Committee to contact your trial counsel of record in this matter to answer questions the committee may have regarding the appeal? 0 Yes 0 No

Please note that any such conversations would be maintained as confidential by the Pro Bono Committee and the information used solely for the pUJ'poses of considering the case fo], inelusion in the Pro Bono Program.

rfyou have not previously filed an affidavit of Indigency and attached a file-stamped copy of that affidavit, docs your income exceed 200% of the U.S. Department of Health and Human Services Federal Poverty Guidelines? 0 Yes 0 No These guidelines can be found in the Pro Bono Program Pamphlet as well as on the intemet at httn_;!!J!~nl::.,blltU~QY!n_Q.YliI!:Y!it6p'oy.liJ:t:uill1JI!l.

Are you willing to disclose your financial circumstances to the Pro Bono Committee? 0 Yes No If yes, please attach an Affidavit oflndigel1cy completed and executed by the appellant or appellee. Sample forms may be found in the Clerk's Office or on the internet at hJ1J,1.:iL',YY:{\YJ.QX:HPp,.m:g. Your participation in the Pro B0110 Program may be conditioned upon your execution of an affidavit under oath as to your financial circumstances.

Give a brief description of the issues to be raised on appeal, the relief sought, and the applicable standard of review, if known (without prejudice to the right to raise additional issues or request additional relief; use a separate attachment, ifnecessary).

XV. Signature

Date: February 26, 2015

Printed Name: Jennifer Bruch Hogan State BarNo.: 03239100

Electronic Signature: Is! Jennifer Bruch Hogan (Optional)

XVI. Certificate of Service

The undersigned counsel certifies that this docketing statement has been served on the following lead counsel for all parties to the trial court's order or judgment as follows on Febnmry26,2015

Electronic Signature: /s/ Jennifer Bruch Hogan (Optional)

State Bar No.: 03239100 Person Served Certificate of Service Requirements (TRAP 9.S(e)): A certificate of service must be signed by the person who made the service and must state:

(l) the date and manner of service; (2) the name and address of each person served, and (3) if the person served is a party's attorney, the name of the party represented by that attorney

Please enter the following for each person served:

Date Served: February 26,2015 Manner Served: eSetved

First Name: b.ale

Middle Name:

Last Name: Wainwright Suffix: Law Firm Name: Bracewell & Giuliani LLP

Address I: 711 Louisiana Street, Suite 2300 Address 2:

City: H()uston

State Texas Zip+4: 7.7002

Telephone: 713.223.2300 ext. Fax: 800.404.3970 Email: dale.wainwright@bgllp.col11

If Attorney, Representing Party's Name: Texas Windstorm Insurance Association Please enter the following for each person served:

Date Served: l'lebmary 26, 2015 Manner Served: eServed

First Name: Andrew

Middle Name: T. LaHt Name: McKinney Suffix: Law Firm Name: Litchfiled Cavo LLP Address 1: One Riverway, S1:!ite.l 000 Address 2: City: Houston State Texas Zip-fA: 7705.6 Telephone: 713.418.2000 ext. Fax: 713.418.2001 Email: mckinney@litchfieldcavo ..col'n If Attorney, Representing Party's Name: Texas Windstorl11 Insunince Association Please enter the following for each person served:

Date Served: Febmary 26, 2015 Manner Served: eServed

First Name: James

Middle Name: R.- Last Name: Old· Suffix: Jr. Law Firm Name: Jay Old & Associates, PLLC Address 1: 2615 Calder Avenue, Suite no Address 2: City: BeaUll10flt State Texas Zip+4: 77702 Telephone: 409,241.7252 ext. Fax: 409.419.1733 Email: jay.old@jroldlaw.com If Attorney, Representing Party's Name: Texas WindstorI11 Insurance Association