Preview
FILED
DALLAS COUNTY
7/20/2017 4:17 PM
FELICIA PITRE
DISTRICT CLERK
CAUSE NO. DC-15-03564
JUAN CASTILLO, IN THE DISTRICT COURT
Plaintiff,
v. 101ST JUDICIAL DISTRICT
NATIONAL UNITY INSURANCE COMPANY
Defendant, DALLAS COUNTY,TEXAS
DEFENDANT
' S UNOPPOSED MOTION TO REOPEN CASE
AND TO LIFT ABATEMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW NATIONAL UNITY INSURANCE COMPANY ("National Unity"),
Defendant in the above-captioned cause, and files this, its Unopposed Motion to Reopen Case and
to Lift Abatement, In support thereof, Defendant would respectfully show the Court as follows:
SUMMARY OF MOTION
I.
The parties entered into a Rule 11 Agreement to abate the case for completion of the
appraisal process under the insurance policy made the subject to this lawsuit. The appraisal process
has been completed. An appraisal award has been rendered and paid by National Unity.
Subsequently, after the appraisal award was paid, the parties began informally negotiating a
settlement ofthe case. After going back and forth, Defendant agreed to a settlement amount with
Plaintiff (exclusive of the appraisal award) and accepted the settlement in writing to Plaintiff.
However, the settlement has not yet been completed because of an issue that arose with Max
Christopher, who is a named insured on the policy, but who Plaintiff believes does not have an
interest in the settlement. However the matter is currently trying to be resolved between the
parties, so that the settlement can be finalized. In the interim, the case has been administratively
closed. Defendant files this unopposed motion seeking to reopen the case and to lift abatement.
DEFENDANT'S UNOPPOSED MOTION TO REOPEN CASE AND TO LIFT ABATEMENT
(Juan Castillo v. National Unity)-- 1
RELEVANT PROCEDURAL BACKGROUND
II.
On or about March 27, 2015, the law firm of Speights and Worrich, on behalf of Juan
Castillo, filed this lawsuit seeking damages alleged to relate to the determination ofthe amount of
insured loss ofa property damage claim under an insurance Policy issued by Defendant to Plaintiff.
On April 16, 2015, Defendant National Unity filed its Original Answer which included a
Plea in Abatement for appraisal.
On or about May 1, 2015,the Case was set for Jury Trial on May 3, 2016 at 9:00 a.m.
On or about November 17, 2015,the parties entered into a Rule 11 Agreement to abate this
case to allow for the completion ofthe appraisal process.
On or about December 30,2015,the parties' Rule 11 Agreement to abate this case pending
completion of the appraisal process was filed in this case.
On or about December 29, 2015, an appraisal award was rendered and signed by the
appraisers appointed by the parties.
On or about January 6, 2016, NATIONAL UNITY informed the Plaintiff, in writing, of
this appraisal award, and on January 7,2016 NATIONAL UNITY paid the Appraisal Award.
After the appraisal award was paid, the parties began informally negotiating a final
settlement ofthe case exclusive of the appraisal award.
On or about March 25, 2016, Defendant accepted the settlement offer made by Plaintiff
and confirmed the settlement in writing to Plaintiff. However,an issue later arose when the checks
were to be drafted with Max Christopher who was a named insured under the policy.
On or about April 5,2016, Defendant sent over the Full and Complete Settlement Release
along with the settlement check, which was paid to Juan Castillo, Max Christopher, and Speights
DEFENDANT'S UNOPPOSED MOTION TO REOPEN CASE AND TO LIFT ABATEMENT
(Juan Castillo v. National Unity)-- 2
& Worrich. However, the Full and Complete Release did not include Max Christopher, but only
Mr. Castillo and his wife.
Since receiving the settlement paperwork, Plaintiff has been trying to resolve the Max
Christopher issue and is currently still doing so in an effort to finalize the settlement. At this time,
the settlement has not been completed.
On or about May 3,2016,the trial was passed, and the case was administratively closed.
ARGUMENT AND AUTHORITIES
III.
A. The case has been properly abated pending the completion of appraisal.
The law of Texas is well-settled in enforcing the use of insurance policy appraisal
provisions to resolve disputes related to the value ofclaims. In re Universal Underwriters ofTex.
Ins. Co., 345 S.W.3d 404, 412 (Tex. 2011). The parties entered into a Rule 11 Agreement to
abate the case pending completion ofappraisal. A true and correct copy ofthe Rule 11 Agreement
was filed with the Court on December 30,2015.1 An appraisal award has been rendered and paid.'
After the appraisal award was paid, the parties started to informally negotiate a settlement,
exclusive of the appraisal award. Defendant then agreed to a settlement amount and confirmed
the settlement in writing to Plaintiff.3 However, an issue later arose when the checks were to be
drafted with Max Christopher, who was a named insured under the policy. Since receiving the
settlement paperwork, Plaintiff has been trying to resolve the Max Christopher issue and is
currently still doing so in an effort to finalize the settlement. Plaintiff believes Max Christopher
I See Plaintiffs Verified Response to Defendant's Verified Plea in Abatement that includes a true and correct copy
of the parties' Rule 11 Agreement to abate the case pending the completion of the appraisal process.
2 See Affidavit of Dave Lacefield attached and incorporated by reference as Exhibit A, with attached Exhibits A-1,
A-2, A-3, to Defendant's Motion for Summary Judgment filed in this cause on June 15, 2017.
' See Letter dated March 25,2016 from Defendant to Plaintiff attached as Exhibit 1 and incorporated herein.
DEFENDANT'S UNOPPOSED MOTION TO REOPEN CASE AND TO LIFT ABATEMENT
(Juan Castillo v. National Unity)-- 3
no longer has an interest in the property and should not be included on the check. This has caused
a delay in finalizing the settlement.
B. The court has liberal discretion to re-open the case for additional evidence.
Texas Civil Procedure Rule 270 allows a trial court to permit additional evidence to be
offered at any time, when it clearly appears to be necessary to the due administration ofjustice.
Tex. R. Civ. P. 270. See also Lopez v Lopez, 55 S.W.3d 194,201 (Tex. App.- Corpus Christi
2001, no pet.). The decision to reopen the case to permit additional evidence is within the trial
court's sound discretion. Tex. R. Civ. P. 270; see also,Poag v. Flories, 317 S.W.3d 820,828
(Tex. App.-Fort Worth, 2010, pet. denied.); Lopez, 55 S.W. 3d at 201. Rule 270 allows, but does
not require, a trial court to permit additional evidence. Lopez, 55 S.W.3d at 201; Krishnan v.
Ramirez, 42 S.W.3d 205,223(Tex.App.-Corpus Christi 2001, pet. denied). However, the trial
court should liberally exercise that discretion to permit the full development ofthe case. Id
In determining whether to permit additional evidence, a trial court may consider the
following factors: (1) the moving party's due diligence in obtaining the evidence; (2) the
decisiveness of the proffered evidence;(3) any undue delay the reception of the evidence could
cause; and (4)any injustice the granting ofthe motion could cause. Eg. Lopez, 55 S.W.3d at 201.
Where these factors are present, it may be a trial court's duty to grant a party's motion to
offer additional evidence.See Word ofFaith Outreach v. Oechsner, 669 S.W.2d 364,366-67(Tex.
App.-Dallas 1984, no writ). Therefore, if all of the factors are not satisfied, a trial court's ruling
on a party's motion to reopen the evidence should not be disturbed. Id., see In re Protection of
H.W, 85 S.W.3d 348,355-56(Tex.App.-Tyler 2002, no pet.).
DEFENDANT'S UNOPPOSED MOTION TO REOPEN CASE AND TO LIFT ABATEMENT
(Juan Castillo v. National Unity)-- 4
C. Defendant seeks to have the Court reopen the case and to lift abatement.
Defendant seeks to have the case re-opened to present the appraisal award and payment of
the appraisal award to the Court and to present the payment of the settlement amount to the Court.
See Word ofFaith Outreach v. Oechsner, 669 S.W.2d 364, 366-67 (Tex. App.-Dallas 1984, no
writ).
PRAYER FOR RELIEF
IV.
BASED ON THE ABOVE, Defendant National Unity respectfully prays that the Court
.reopen this case and lift the abatement. Defendant prays for such other and further relief to which
Defendant may show itself to be justly entitled.
Respectfully submitted,
BROWN,DEAN,PROCTOR & HOWELL,L.L.P.
By:
Michael W. Johnsto
State Bar No. 10840 00
Denise Collins
State Bar No. 04607100
325 N. St. Paul Street, Suite 3100
Dallas, Texas 75201
Telephone:(817)820-0825
Facsimile:(817)820-0830
Dallas Metro:(972)219-4772
Dallas Metro Fax: (972)219-4771
E-mail: Johnston@browndean.com
E-mail: DCollins@browndean.com
ATTORNEYS FOR DEFENDANT
NATIONAL UNITY INSURANCE COMPANY
DEFENDANT'S UNOPPOSED MOTION TO REOPEN CASE AND TO LIFT ABATEMENT
(Juan Castillo v. National Unity)-- 5
APPROVED:
SPEIGHTS & WORRICH
Jason B. Speiglits
Shelly Calhoun
1350 N. Loop 1604 East, Suite 104
San Antonio, Texas 78232
Fax: 210.495.6790
E: jason
( a
) speightsfmn.com
E: shelly@calhounattorney.com
ATTORNEYS FOR PLAINTIFF
DEFENDANT'S UNOPPOSED MOTION TO REOPEN CASE AND TO LIFT ABATEMENT
(Juan Castillo v. National Unity) -- 6
CERTIFICATE OF SERVICE
This is to certify that pursuant to the Applicable Rules of Civil Procedure, the above
document, including attachments, was served upon the following attorney(s) of record and pro se
parties on the „7-0II" day of 2017, by the method indicated:
In Person to:
By Regular U.S. Mail to:
By Courier Delivery to:
By Certified Mail, Return Receipt, Requested to:
As directed by the Court to:
_X_ By facsimile to:
X By e-service/e-mail to:
Fax:210.495.6790
Email: jason( d,speightsfirm.com
Email: shelly
( dsalhounattorney.com
Mr. Jason B. Speights
Shelly Calhoun
Speights & Worrich
1350 N. Loop 1604 East, Suite 104
San Antonio, Texas 78232
ATTORNEYS FOR PLAINTIFF
DEFENDANT'S UNOPPOSED MOTION TO REOPEN CASE AND TO LIFT ABATEMENT
(Juan Castillo v. National Unity) -- 7
JOHNSTON LEGAL GROUP PC
March 25, 2016
VIA FAX:(210)495-6790
Jake Rogiers
SPEIGHTS & WORRICH
Two Turtle Creek
3838 Oak Lawn Avenue, Suite 1000
Dallas, Texas 75219
Re: Cause No. DC-15-03564
Juan Castillo vs. National Unity Insurance Company
In the 1018( District Court — Dallas County, Texas
Dear Jake:
National Unity has accepted your Offer of Settlement in the amount of In addition,
Mr. Castillo would be eligible for the Depreciation Holdback in the maximum amount of
if he complies with the Policy provisions relating to Replacement Cost Coverage. The
check will be payable to Juan Castillo, Max Christopher as well as your law firm. It is our
understanding that your Tax Identification Number is 20-1241613. Once we receive the Settlement
Proceeds Check, we will forward it, along with Settlement papers to you.
In the meantime, if you have any questions, please let us know.
Sincerely,
JO NST,ON LE L GROUP PC
Board Certified Texas Boa f Legal Specialization
Civil Trial Law
Consumer and Commercial Law
Board Certified National Board of Trial Advocacy
Civil Trial Law
Civil Pre-Trial Practicc Advocacy
AV Preeminent Rated — Martindale Hubbell
MWJ/bk
PLEASE REPLY TO:
ABILENE DISPUTE MANAGEMENT CENTER
FORT WORTH 4200 AIRPORT FREEWAY PRINCIPAL OFFICE
HOUSTON FORT WORTH, TEXAS 76 I I 7 IN FORT WORTH
LUBBOCK (81 7) 820-0825 ALL OFFICES ARE BY
OKLAHOMA CITY Fax: (8 17) 820-0830 APPOINTMENT ONLY
SAN ANTONIO DALLAS METRO:(972) 2 19-4772
DALLAS METRO Fax: (972) 2 I 9-477 I
www.txinslaw.cont
w ww.johnstonlegalgroup.com
FOUNDING MEMBER OF TEXAS LAWYER NETWORK
800-771-6946
Preview
FILED DALLAS COUNTY 7/20/2017 4:17 PM FELICIA PITRE DISTRICT CLERK CAUSE NO. DC-15-03564 JUAN CASTILLO, IN THE DISTRICT COURT Plaintiff, v. 101ST JUDICIAL DISTRICT NATIONAL UNITY INSURANCE COMPANY Defendant, DALLAS COUNTY,TEXAS DEFENDANT ' S UNOPPOSED MOTION TO REOPEN CASE AND TO LIFT ABATEMENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW NATIONAL UNITY INSURANCE COMPANY ("National Unity"), Defendant in the above-captioned cause, and files this, its Unopposed Motion to Reopen Case and to Lift Abatement, In support thereof, Defendant would respectfully show the Court as follows: SUMMARY OF MOTION I. The parties entered into a Rule 11 Agreement to abate the case for completion of the appraisal process under the insurance policy made the subject to this lawsuit. The appraisal process has been completed. An appraisal award has been rendered and paid by National Unity. Subsequently, after the appraisal award was paid, the parties began informally negotiating a settlement ofthe case. After going back and forth, Defendant agreed to a settlement amount with Plaintiff (exclusive of the appraisal award) and accepted the settlement in writing to Plaintiff. However, the settlement has not yet been completed because of an issue that arose with Max Christopher, who is a named insured on the policy, but who Plaintiff believes does not have an interest in the settlement. However the matter is currently trying to be resolved between the parties, so that the settlement can be finalized. In the interim, the case has been administratively closed. Defendant files this unopposed motion seeking to reopen the case and to lift abatement. DEFENDANT'S UNOPPOSED MOTION TO REOPEN CASE AND TO LIFT ABATEMENT (Juan Castillo v. National Unity)-- 1 RELEVANT PROCEDURAL BACKGROUND II. On or about March 27, 2015, the law firm of Speights and Worrich, on behalf of Juan Castillo, filed this lawsuit seeking damages alleged to relate to the determination ofthe amount of insured loss ofa property damage claim under an insurance Policy issued by Defendant to Plaintiff. On April 16, 2015, Defendant National Unity filed its Original Answer which included a Plea in Abatement for appraisal. On or about May 1, 2015,the Case was set for Jury Trial on May 3, 2016 at 9:00 a.m. On or about November 17, 2015,the parties entered into a Rule 11 Agreement to abate this case to allow for the completion ofthe appraisal process. On or about December 30,2015,the parties' Rule 11 Agreement to abate this case pending completion of the appraisal process was filed in this case. On or about December 29, 2015, an appraisal award was rendered and signed by the appraisers appointed by the parties. On or about January 6, 2016, NATIONAL UNITY informed the Plaintiff, in writing, of this appraisal award, and on January 7,2016 NATIONAL UNITY paid the Appraisal Award. After the appraisal award was paid, the parties began informally negotiating a final settlement ofthe case exclusive of the appraisal award. On or about March 25, 2016, Defendant accepted the settlement offer made by Plaintiff and confirmed the settlement in writing to Plaintiff. However,an issue later arose when the checks were to be drafted with Max Christopher who was a named insured under the policy. On or about April 5,2016, Defendant sent over the Full and Complete Settlement Release along with the settlement check, which was paid to Juan Castillo, Max Christopher, and Speights DEFENDANT'S UNOPPOSED MOTION TO REOPEN CASE AND TO LIFT ABATEMENT (Juan Castillo v. National Unity)-- 2 & Worrich. However, the Full and Complete Release did not include Max Christopher, but only Mr. Castillo and his wife. Since receiving the settlement paperwork, Plaintiff has been trying to resolve the Max Christopher issue and is currently still doing so in an effort to finalize the settlement. At this time, the settlement has not been completed. On or about May 3,2016,the trial was passed, and the case was administratively closed. ARGUMENT AND AUTHORITIES III. A. The case has been properly abated pending the completion of appraisal. The law of Texas is well-settled in enforcing the use of insurance policy appraisal provisions to resolve disputes related to the value ofclaims. In re Universal Underwriters ofTex. Ins. Co., 345 S.W.3d 404, 412 (Tex. 2011). The parties entered into a Rule 11 Agreement to abate the case pending completion ofappraisal. A true and correct copy ofthe Rule 11 Agreement was filed with the Court on December 30,2015.1 An appraisal award has been rendered and paid.' After the appraisal award was paid, the parties started to informally negotiate a settlement, exclusive of the appraisal award. Defendant then agreed to a settlement amount and confirmed the settlement in writing to Plaintiff.3 However, an issue later arose when the checks were to be drafted with Max Christopher, who was a named insured under the policy. Since receiving the settlement paperwork, Plaintiff has been trying to resolve the Max Christopher issue and is currently still doing so in an effort to finalize the settlement. Plaintiff believes Max Christopher I See Plaintiffs Verified Response to Defendant's Verified Plea in Abatement that includes a true and correct copy of the parties' Rule 11 Agreement to abate the case pending the completion of the appraisal process. 2 See Affidavit of Dave Lacefield attached and incorporated by reference as Exhibit A, with attached Exhibits A-1, A-2, A-3, to Defendant's Motion for Summary Judgment filed in this cause on June 15, 2017. ' See Letter dated March 25,2016 from Defendant to Plaintiff attached as Exhibit 1 and incorporated herein. DEFENDANT'S UNOPPOSED MOTION TO REOPEN CASE AND TO LIFT ABATEMENT (Juan Castillo v. National Unity)-- 3 no longer has an interest in the property and should not be included on the check. This has caused a delay in finalizing the settlement. B. The court has liberal discretion to re-open the case for additional evidence. Texas Civil Procedure Rule 270 allows a trial court to permit additional evidence to be offered at any time, when it clearly appears to be necessary to the due administration ofjustice. Tex. R. Civ. P. 270. See also Lopez v Lopez, 55 S.W.3d 194,201 (Tex. App.- Corpus Christi 2001, no pet.). The decision to reopen the case to permit additional evidence is within the trial court's sound discretion. Tex. R. Civ. P. 270; see also,Poag v. Flories, 317 S.W.3d 820,828 (Tex. App.-Fort Worth, 2010, pet. denied.); Lopez, 55 S.W. 3d at 201. Rule 270 allows, but does not require, a trial court to permit additional evidence. Lopez, 55 S.W.3d at 201; Krishnan v. Ramirez, 42 S.W.3d 205,223(Tex.App.-Corpus Christi 2001, pet. denied). However, the trial court should liberally exercise that discretion to permit the full development ofthe case. Id In determining whether to permit additional evidence, a trial court may consider the following factors: (1) the moving party's due diligence in obtaining the evidence; (2) the decisiveness of the proffered evidence;(3) any undue delay the reception of the evidence could cause; and (4)any injustice the granting ofthe motion could cause. Eg. Lopez, 55 S.W.3d at 201. Where these factors are present, it may be a trial court's duty to grant a party's motion to offer additional evidence.See Word ofFaith Outreach v. Oechsner, 669 S.W.2d 364,366-67(Tex. App.-Dallas 1984, no writ). Therefore, if all of the factors are not satisfied, a trial court's ruling on a party's motion to reopen the evidence should not be disturbed. Id., see In re Protection of H.W, 85 S.W.3d 348,355-56(Tex.App.-Tyler 2002, no pet.). DEFENDANT'S UNOPPOSED MOTION TO REOPEN CASE AND TO LIFT ABATEMENT (Juan Castillo v. National Unity)-- 4 C. Defendant seeks to have the Court reopen the case and to lift abatement. Defendant seeks to have the case re-opened to present the appraisal award and payment of the appraisal award to the Court and to present the payment of the settlement amount to the Court. See Word ofFaith Outreach v. Oechsner, 669 S.W.2d 364, 366-67 (Tex. App.-Dallas 1984, no writ). PRAYER FOR RELIEF IV. BASED ON THE ABOVE, Defendant National Unity respectfully prays that the Court .reopen this case and lift the abatement. Defendant prays for such other and further relief to which Defendant may show itself to be justly entitled. Respectfully submitted, BROWN,DEAN,PROCTOR & HOWELL,L.L.P. By: Michael W. Johnsto State Bar No. 10840 00 Denise Collins State Bar No. 04607100 325 N. St. Paul Street, Suite 3100 Dallas, Texas 75201 Telephone:(817)820-0825 Facsimile:(817)820-0830 Dallas Metro:(972)219-4772 Dallas Metro Fax: (972)219-4771 E-mail: Johnston@browndean.com E-mail: DCollins@browndean.com ATTORNEYS FOR DEFENDANT NATIONAL UNITY INSURANCE COMPANY DEFENDANT'S UNOPPOSED MOTION TO REOPEN CASE AND TO LIFT ABATEMENT (Juan Castillo v. National Unity)-- 5 APPROVED: SPEIGHTS & WORRICH Jason B. Speiglits Shelly Calhoun 1350 N. Loop 1604 East, Suite 104 San Antonio, Texas 78232 Fax: 210.495.6790 E: jason ( a ) speightsfmn.com E: shelly@calhounattorney.com ATTORNEYS FOR PLAINTIFF DEFENDANT'S UNOPPOSED MOTION TO REOPEN CASE AND TO LIFT ABATEMENT (Juan Castillo v. National Unity) -- 6 CERTIFICATE OF SERVICE This is to certify that pursuant to the Applicable Rules of Civil Procedure, the above document, including attachments, was served upon the following attorney(s) of record and pro se parties on the „7-0II" day of 2017, by the method indicated: In Person to: By Regular U.S. Mail to: By Courier Delivery to: By Certified Mail, Return Receipt, Requested to: As directed by the Court to: _X_ By facsimile to: X By e-service/e-mail to: Fax:210.495.6790 Email: jason( d,speightsfirm.com Email: shelly ( dsalhounattorney.com Mr. Jason B. Speights Shelly Calhoun Speights & Worrich 1350 N. Loop 1604 East, Suite 104 San Antonio, Texas 78232 ATTORNEYS FOR PLAINTIFF DEFENDANT'S UNOPPOSED MOTION TO REOPEN CASE AND TO LIFT ABATEMENT (Juan Castillo v. National Unity) -- 7 JOHNSTON LEGAL GROUP PC March 25, 2016 VIA FAX:(210)495-6790 Jake Rogiers SPEIGHTS & WORRICH Two Turtle Creek 3838 Oak Lawn Avenue, Suite 1000 Dallas, Texas 75219 Re: Cause No. DC-15-03564 Juan Castillo vs. National Unity Insurance Company In the 1018( District Court — Dallas County, Texas Dear Jake: National Unity has accepted your Offer of Settlement in the amount of In addition, Mr. Castillo would be eligible for the Depreciation Holdback in the maximum amount of if he complies with the Policy provisions relating to Replacement Cost Coverage. The check will be payable to Juan Castillo, Max Christopher as well as your law firm. It is our understanding that your Tax Identification Number is 20-1241613. Once we receive the Settlement Proceeds Check, we will forward it, along with Settlement papers to you. In the meantime, if you have any questions, please let us know. Sincerely, JO NST,ON LE L GROUP PC Board Certified Texas Boa f Legal Specialization Civil Trial Law Consumer and Commercial Law Board Certified National Board of Trial Advocacy Civil Trial Law Civil Pre-Trial Practicc Advocacy AV Preeminent Rated — Martindale Hubbell MWJ/bk PLEASE REPLY TO: ABILENE DISPUTE MANAGEMENT CENTER FORT WORTH 4200 AIRPORT FREEWAY PRINCIPAL OFFICE HOUSTON FORT WORTH, TEXAS 76 I I 7 IN FORT WORTH LUBBOCK (81 7) 820-0825 ALL OFFICES ARE BY OKLAHOMA CITY Fax: (8 17) 820-0830 APPOINTMENT ONLY SAN ANTONIO DALLAS METRO:(972) 2 19-4772 DALLAS METRO Fax: (972) 2 I 9-477 I www.txinslaw.cont w ww.johnstonlegalgroup.com FOUNDING MEMBER OF TEXAS LAWYER NETWORK 800-771-6946