Rosa Ena Cantu v. Southern Insurance Company and Steve Dollery

Opinion

ACCEPTED

03-15-00017-CV

4295677

THIRD COURT OF APPEALS

AUSTIN, TEXAS

2/26/2015 12:11:11 PM

JEFFREY D. KYLE

CLERK

CASE NO. 03-15-00017-CV

FILED IN

3rd COURT OF APPEALS

IN THE THIRD COURT OF APPEALS AUSTIN, TEXAS 2/26/2015 12:11:11 PM

AUSTIN, TEXAS JEFFREY D. KYLE Clerk

Rose Ena Cantu, Appellant v.

Southern Insurance Company and Steve Dollery, Appellees

On Appeal from the 21st Judicial District Court Bastrop County, Texas Hon. Carson Campbell

Appellees’ Reply to Appellant’s Response to Motion to Award Costs

TO THE HONORABLE COURT OF APPEALS:

1. In response to the motion to dismiss this appeal and award costs of

Appellees Southern and Dollery (collectively, “Southern”), Appellant Cantu has

filed an “unopposed” motion to dismiss the appeal and a response to the motion for

costs. While Southern agrees that the appeal should be dismissed,1 Southern asks

the Court to award its costs for having to respond to Cantu’s groundless appeal and

for her failure to verify the jurisdictional basis of her appeal both before filing her

notice and after the defect was brought to her attention.

1 As discussed infra, Southern disagrees with Cantu’s assertion that the severance she has requested in the Bastrop trial court will render the December 10, 2014 order appealable.

2. Cantu’s Response ignores the facts that Southern alerted her to the

jurisdictional defects in her appeal, asked her, in writing, to voluntarily dismiss the

appeal on two separate occasions, and waited more than two weeks with no

response before filling its motion. See Appellees’ Motion, Ex. C. Cantu also

willfully ignored trial court rulings and the procedural posture of this suit when she

filed her appeal. Cantu suggests that she was confused about whether her claims

had been severed from those of other plaintiffs before the suit was transferred from

Dallas to Bastrop and assigned Cause No. 29,358, and that this confusion caused

her to overlook Southern’s counterclaim electronically filed in Cause No. 29,358

on November 17, 2014. See Appellant’s Response ¶¶ 2-3.2 But the interlocutory

dismissal order Cantu has attempted to appeal is from that same cause number.

She received Southern’s motion, notice of hearing, and reply and filed her own

response to Southern’s motion to dismiss in that cause number. The Dallas trial

court also instructed Cantu that her claims would need to go forward in the case

transferred to Bastrop. As the misstatements in her Response highlight, Cantu

2 Cantu’s assertion that her claims were severed and re-docketed while this case was pending in Dallas is not true. See Appellant’s Response ¶ 2. Because Ms. Cantu did not pay the filing fee as ordered by the Dallas trial court, the severance was never effected and Cantu’s claims were transferred to Bastrop with the rest of the case. See Appellant’s Response, Ex. C (Dallas court order of severance); see also McRoberts v. Ryals, 863 S.W.2d 450, 453 n.3 (Tex.1993) (court can condition “the effectiveness of the severance on a future certain event, such as . . . payment of fees associated with the severance”). Accordingly, the Dallas court abated and administratively closed the new cause number when Cantu later paid the filing fee. See Exhibit “1,” Order in Cause No. DC-14-10431, attached hereto. Southern filed its counterclaim in Bastrop Cause No. 29,358 on November 17, 2014 – the same day the Dallas court told Cantu that her claims would need to go forward in Bastrop in the transferred case.

Appellees’ Reply to Appellant’s Response to Motion for Costs Page 2 chose to believe her own narrative of the case rather than confirm the procedural

status of the suit and jurisdictional basis for her appeal – even after Southern

brought these issues to her attention.

3. Although Cantu does not request that the Court abate her appeal, her

arguments that the appeal was only slightly premature and that the severance she

has requested in the Bastrop trial court will make the interlocutory December 10,

2014 order appealable are incorrect. See Appellant’s Response and Appellant’s

Motion to Dismiss. ¶¶ 3-6. Southern still has pending counterclaims against Cantu

and opposes severance of just her affirmative claims; the trial court is unlikely to

sever Cantu’s dismissed causes of action without also severing Southern’s

counterclaims pertaining to those causes of action. An order of severance will not

create a final judgment out of the interlocutory December 10, 2014 order.

4. Despite her professed desire to avoid “unnecessary disputes” and this

“unnecessary, delaying, and cost-generating controversy” regarding her appeal,

Cantu’s own conduct created the dispute and made Southern’s motions necessary.

Cantu did not timely respond to Southern’s requests that she voluntarily dismiss

this appeal. Her failure to respond has caused Southern and this Court to incur

needless expense, which could have been easily avoided if Cantu had made the

least effort either before or after filing her notice of appeal to confirm the

jurisdictional basis for the appeal. Only after Southern again expended

Appellees’ Reply to Appellant’s Response to Motion for Costs Page 3 unnecessary time and money – and with the threat of sanctions over her head – did

Cantu bother to review her filings. Southern asks that the Court award it the

modest fees requested for the inconvenience and expense caused by Cantu’s

intransigence and failure to follow minimum procedural standards.

WHEREFORE, PREMISES CONSIDERED, Appellees Southern Insurance

Company and Steve Dollery respectfully pray that the Court dismiss Appellant

Rose Ena Cantu’s appeal, award Appellees their costs for responding to this

frivolous appeal, and for such other and further relief to which Appellees may

show themselves justly entitled.

Respectfully submitted,

HANNA & PLAUT, L.L.P. 211 East Seventh Street, Suite 600 Austin, Texas 78701 Telephone: (512) 472-7700 Facsimile: (512) 472-0205

By: /s/ Eric S. Peabody

Catherine L. Hanna State Bar No. 08918280 channa@hannaplaut.com Eric S. Peabody State Bar No. 00789539 epeabody@hannaplaut.com Laura D. Tubbs State Bar No. 24052792 ltubbs@hannaplaut.com

COUNSEL FOR APPELLEES

Appellees’ Reply to Appellant’s Response to Motion for Costs Page 4

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Appellees’

Reply to Appellant’s Response to Motion to Award Costs has been forwarded by e-service and/or facsimile on the 26th day of February, 2015 to:

Via Facsimile: (713) 467-8883 Robert L. Collins M. Chad Gerke Audrey Guthrie P.O. Box 7726 Houston, Texas 77270-7726

Via Facsimile: (713) 467-8883 Christopher D. Lewis 1721 West T.C. Jester Blvd. Houston, Texas 77008

Counsel for Appellant

/s/ Eric S. Peabody Eric S. Peabody

Appellees’ Reply to Appellant’s Response to Motion for Costs Page 5

Exhibit 1

CAUSE N° DC-14-10431

ROSE CANTU In the District Court

vs. TEXAS SOUTHERN INSURANCE COMPANY of Dallas County, Texas

et al 193rd Judicial District

ORDER TO ABATE AND TO CLERK TO ADMINISTRATIVELY CLOSE CASE

ON THIS DAY, this Court hereby considers and GRANTS a Plea in Abatement requested by a Party to this cause. This cause is hereby ABATED until further Order Of the Court.

IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that, while retaining jurisdiction over the case, the clerk of the Court shall close this file and remove it from the active docket of pending cases assigned to this Court until further Order of the Court.

So ORDERED this 11/17/2014

&;.*meg :v ° X-

The Honorable Carl Ginsberg 193rd Judicial District Court

EXHIBIT

b

.0-45

a