Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Etienne v. State Farm Lloyds

Court of Appeals of Texas, Fourteenth District

September 10, 2019

JADA ETIENNE, Appellant
v.
STATE FARM LLOYDS, Appellee

          On Appeal from the County Civil Court at Law No. 2 Harris County, Texas Trial Court Cause No. 1109021

          Panel consists of Justices Christopher, Spain, and Poissant.

          MEMORANDUM OPINION

          TRACY CHRISTOPHER JUSTICE.

         This is an appeal from a case in which an insured sued to force her property insurer to participate in the appraisal process set forth in the policy. In fact, the parties already were participating in the appraisal process, and because the appraisers selected by each side could not agree on the value of the loss or on the choice of an umpire to decide which appraiser was correct, the insurer moved the trial court to appoint an umpire. On consecutive days, (a) the insured filed a notice of non-suit, (b) the trial court appointed an umpire, and (c) the trial court dismissed the insured's claims. The insured then successfully moved to sanction the insured's trial counsel for signing and filing a pleading with no basis in fact. The insured appeals the trial court's order appointing an umpire and the sanctions order.

         We conclude that the trial court acted within its jurisdiction and discretion in appointing an umpire; thus, we affirm the appointment order, which was merged into the final judgment. Because the insured lacks standing to appeal the order sanctioning her trial counsel and his law firm, and neither the attorney nor the firm have appealed the order, we dismiss that portion of the appeal for lack of jurisdiction.

         I. Background

         Appellee State Farm Lloyds insures property owned by appellant Jada Etienne. After Etienne made a claim under the policy, she invoked the appraisal provision. The policy provides that if either party demands appraisal, each party will select an appraiser and the two appraisers will jointly determine the amount of the loss. If they are unable to agree, the two appraisers will select an umpire to resolve their differences. If they are unable to agree upon an umpire within 15 days, then the insurer or the insured "may make a written application for a judge of a court of record in the same state and county . . . where the residence premises is located to select an umpire."

         State Farm Lloyds agreed to Etienne's invocation of the appraisal process, and both sides appointed appraisers. Etienne nevertheless sued State Farm weeks later in Harris County Civil Court at Law No. 2, where she alleged that State Farm refused to participate in the appraisal process and she stated her intent to ask the court to appoint an umpire. State Farm answered and filed its own motion for appointment of an umpire. Etienne did not respond to State Farm's motion but instead filed a similar application on the ancillary docket of the Harris County Civil District Courts.

         Approximately twelve hours before the hearing on State Farm's motion, Etienne filed a notice of non-suit. Neither she nor her counsel appeared at the hearing, and the trial court appointed an umpire as State Farm had requested. The next day, the trial court signed an order dismissing Etienne's claims.

         Etienne filed a motion to vacate the order appointing an umpire, arguing that the trial court lost jurisdiction the moment that Etienne filed her notice of non-suit. She also argued that the trial court abused its discretion in proceeding with the hearing and the appointment because State Farm failed to give ten days' notice before applying for appointment of an umpire, as the policy requires. State Farm responded and moved for sanctions against Etienne's counsel Eric Dick and the Dick Law Firm under Texas Rule of Civil Procedure 13 and Texas Civil Practice and Remedies Code Chapter 10 for signing and filing a pleading with no basis in fact. The trial court denied Etienne's motion to vacate the umpire appointment and ordered Dick and the Dick Law Firm to pay attorney's fees of $4, 000 to State Farm as sanctions. Etienne appeals both orders.

         II. The Law Concerning Non-suits

         Because much of Etienne's arguments are premised on the idea that a notice of non-suit deprives a trial court of jurisdiction, we begin by clarifying this jurisdictional point.

         A plaintiff may voluntarily dismiss or "non-suit" its case at any time before it has introduced all of its evidence other than rebuttal evidence. Tex.R.Civ.P. 162. A non-suit does not prejudice an adverse party's right to a hearing and a ruling upon its pending claims for affirmative relief. Id.

         To assert a claim for affirmative relief, the defendant must do "more than resist plaintiff's right to recover." BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990) (orig. proceeding) (quoting Gen'l Land Office v. Oxy U.S.A., Inc., 789 S.W.2d 569, 570 (Tex. 1990)). A defendant makes a claim for affirmative relief if it "allege[s] a cause of action, independent of the plaintiff's claim, on which the claimant could recover compensation or relief, even if the plaintiff abandons or is unable to establish his cause of action. Univ. of Tex. Med. Branch at Galveston v. Estate of Blackmon ex rel. Shultz, 195 S.W.3d 98, 101 (Tex. 2006) (per curiam) (citing BHP Petroleum Co., Inc. v. Millard, 800 S.W.2d 838, 841 (Tex. 1990) (orig. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.