On January 24, 2022 a
Motion,Ex Parte
was filed
involving a dispute between
Rodriguez, Juan Ramon,
Sepulveda, Evaristo, Jr.,
and
Austin Traffic Signal Construction Co. Inc.,
Silva, Apolinar,
Silva, Carlos,
for Injury or Damage - Motor Vehicle (OCA)
in the District Court of Hidalgo County.
Preview
Electronically Filed
12/27/2023 2:14 PM
Hidalgo County District Clerks
Reviewed By: Juan Galvan
CAUSE NO.: C-0290-22-M
JUAN RAMON RODRIGUEZ and § IN THE DISTRICT COURT
EVARISTO RODRIGUEZ §
§
VS. §
§
CARLOS SILVA, APOLINAR SILVA, and §
AUSTIN TRAFFIC SIGNAL CONSTRUCTION § 476th JUDICIAL DISTRICT
CO., INC. §
§
VS. §
§
HOME STATE COUNTY MUTUAL INSURANCE §
COMPANY A/K/A APOLLO MANAGING §
GENERAL AGENCY, LLC D/B/A APOLLO GROUP § HIDALGO COUNTY, TEXAS
DEFENDANTS APOLLO MANAGING GENERAL AGENCY, LLC AND HOME STATE COUNTY
MUTUAL INSURANCE COMPANY'S MOTION TO STAY PROCEEDINGS AND PLEA IN
ABATEMENT
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, APOLLO MANAGING GENERAL AGENCY, LLC AND HOME STATE COUNTY
MUTUAL INSURANCE COMPANY (improperly named Home State County Mutual Insurance
Company a/k/a Apollo Managing General Agency LLC d/b/a Apollo Group), Cross-Defendants
in the above-styled cause, and file this Plea in Abatement objecting to the Court's consideration
of this cause on the merits and in support thereof would show the Court the following:
I.
INTRODUCTION
Cross-Plaintiffs Carlos Silva and Apolinar Silva, are individuals allegedly residing in
Hidalgo County, Texas. On September 14, 2023 Cross-Plaintiff filed this suit seeking damages
for alleged violations of the Texas Deceptive Trade Practices - Consumer Protection Act ("DTPA")
and Texas Business & Commerce Code. Cross-Plaintiffs allege that Cross-Defendants’ alleged
Electronically Filed
12/27/2023 2:14 PM
Hidalgo County District Clerks
Reviewed By: Juan Galvan
conduct violated §17.50(a)(4) of the Texas Business and Commerce Code in that it represents
conduct prohibited by Article 21.21 of the Texas Insurance Code.
Cross-Defendants seek to abate this action because Cross-Plaintiffs have failed to
provide proper notice of their claims under the DPTA. This failure has prevented Cross-
Defendants from exercising important rights under the DPTA to evaluate Cross-Plaintiffs’ claims.
II.
ARGUMENTS AND AUTHORITIES
The Court must abate these proceedings for sixty (60) days because Plaintiffs
failed to give Defendants the sixty (60) day notice required by statute.
The cross-plaintiff bears the burden of pleading and proving compliance with the DTPA's
notice provisions. Keith v. Stoelting, Inc., 915 F.2d 996, 997 (5th Cir. 1990). Pursuant to Texas
Business & Commerce Code §17.505(a), a consumer shall give written notice of the alleged
DTPA violations at least sixty (60) days before filing the suit. Tex. Bus. & Com. Code §17.505(a).
The DTPA's sixty (60) day notice requirement is designed to afford an opportunity for
pre-suit negations and settlement to avoid lengthy and costly litigation; this requirement
mandates a written notice prior to filing suit. Hines v. Hash, 843 S.W.2d 464, 467 (Tex. 1992).
Because Cross-Plaintiffs did not comply with the sixty (60) day waiting period, Cross-Defendants'
Plea in Abatement should be granted pursuant to Texas Bus. & Com. Code §17.505(d).
§17.505(d), which states that the Court shall abate the suit if the Court, after a hearing, finds
that the person is entitled to an abatement because notice was not provided as required.
Because notice was not timely provided, the Court must, in accordance with statute, grant
Cross-Defendants' Plea in Abatement. Pursuant to §17.505(e), this abatement should continue
-2-
Electronically Filed
12/27/2023 2:14 PM
Hidalgo County District Clerks
Reviewed By: Juan Galvan
until the sixtieth (60th) day after the date that proper written notice is served upon Cross-
Defendants.
III.
CONCLUSION
WHEREFORE, PREMISES CONSIDERED, Cross-Defendants, APOLLO MANAGING GENERAL
AGENCY, LLC AND HOME STATE COUNTY MUTUAL INSURANCE COMPANY request that this suit
be stayed and abated until sixty (60) days after proper notice is served. Cross-Defendants
further request such other and further relief to which Cross-Defendants may be justly entitled.
Respectfully submitted,
GONZALEZ CASTILLO MOYA, LLP
By: /s/ Eduardo Moya
Edward J. Castillo
SBN: 24040658
Eduardo Moya
SBN: 24105674
1317 E. Quebec Avenue
McAllen, Texas 78503
(956) 618-0115
FAX: (956) 618-0445
Email: law@valleyfirm.com
ATTORNEYS FOR CROSS-DEFENDANTS,
APOLLO MANAGING GENERAL AGENCY, LLC AND
HOME STATE COUNTY MUTUAL INSURANCE COMPANY
(improperly named Home State County Mutual Insurance
Company a/k/a Apollo Managing General Agency LLC
d/b/a Apollo Group)
-3-
Electronically Filed
12/27/2023 2:14 PM
Hidalgo County District Clerks
Reviewed By: Juan Galvan
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing document has
been forwarded to all counsel of record via electronic filing service, on this 27th day of
December, 2023.
/s/ Eduardo Moya
Eduardo Moya
\\efileroom\firm\Data\data\APOLLO\S\Silva, C. v. Apollo 72.319\mtn-12222023-stay & plea in abatement.rv.wpd
-4-
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Regina Vargas on behalf of Eduardo Moya
Bar No. 24105674
rvargas@valleyfirm.com
Envelope ID: 82891292
Filing Code Description: Motion (No Fee)
Filing Description: DEFENDANTS APOLLO MANAGING GENERAL
AGENCY, LLC AND HOME STATE COUNTY MUTUAL INSURANCE
COMPANY'S MOTION TO STAY PROCEEDINGS AND PLEA IN
ABATEMENT
Status as of 12/27/2023 2:23 PM CST
Associated Case Party: Juan RamonRodriguez
Name BarNumber Email TimestampSubmitted Status
MELANIE BARRIETNEZ MEL@POPEPENA.COM 12/27/2023 2:14:31 PM SENT
Pope & Pena PC info@popepena.com 12/27/2023 2:14:31 PM SENT
Associated Case Party: Austin Traffic Signal Construction Co. Inc.
Name BarNumber Email TimestampSubmitted Status
Robert CTurner robertturner@silveralaw.com 12/27/2023 2:14:31 PM SENT
Candy Ryan cryan@silveralaw.com 12/27/2023 2:14:31 PM SENT
File Clerk notice@silveralaw.com 12/27/2023 2:14:31 PM SENT
Associated Case Party: HOME STATE COUNTY MUTUAL INSURANCE COMPANY
A/K/A APOLLO MANAGING GENERAL AGENCY, LLC D/B/A APOLLO GROUP
Name BarNumber Email TimestampSubmitted Status
Eduardo Moya edmoya@valleyfirm.com 12/27/2023 2:14:31 PM SENT
GONZALEZ CASTILLO, LLP law@valleyfirm.com 12/27/2023 2:14:31 PM SENT
Edward Castillo ecastillo@valleyfirm.com 12/27/2023 2:14:31 PM SENT
Associated Case Party: Carlos Silva
Name BarNumber Email TimestampSubmitted Status
The Pruneda Law Firm PLLC michael@michaelpruneda.com 12/27/2023 2:14:31 PM SENT
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Regina Vargas on behalf of Eduardo Moya
Bar No. 24105674
rvargas@valleyfirm.com
Envelope ID: 82891292
Filing Code Description: Motion (No Fee)
Filing Description: DEFENDANTS APOLLO MANAGING GENERAL
AGENCY, LLC AND HOME STATE COUNTY MUTUAL INSURANCE
COMPANY'S MOTION TO STAY PROCEEDINGS AND PLEA IN
ABATEMENT
Status as of 12/27/2023 2:23 PM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
JAY PENA INFO@POPEPENA.COM 12/27/2023 2:14:31 PM SENT
JAY PENA j.pena@popepena.com 12/27/2023 2:14:31 PM SENT
Document Filed Date
December 27, 2023
Case Filing Date
January 24, 2022
Category
Injury or Damage - Motor Vehicle (OCA)
For full print and download access, please subscribe at https://www.trellis.law/.
Preview
Electronically Filed 12/27/2023 2:14 PM Hidalgo County District Clerks Reviewed By: Juan Galvan CAUSE NO.: C-0290-22-M JUAN RAMON RODRIGUEZ and § IN THE DISTRICT COURT EVARISTO RODRIGUEZ § § VS. § § CARLOS SILVA, APOLINAR SILVA, and § AUSTIN TRAFFIC SIGNAL CONSTRUCTION § 476th JUDICIAL DISTRICT CO., INC. § § VS. § § HOME STATE COUNTY MUTUAL INSURANCE § COMPANY A/K/A APOLLO MANAGING § GENERAL AGENCY, LLC D/B/A APOLLO GROUP § HIDALGO COUNTY, TEXAS DEFENDANTS APOLLO MANAGING GENERAL AGENCY, LLC AND HOME STATE COUNTY MUTUAL INSURANCE COMPANY'S MOTION TO STAY PROCEEDINGS AND PLEA IN ABATEMENT TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, APOLLO MANAGING GENERAL AGENCY, LLC AND HOME STATE COUNTY MUTUAL INSURANCE COMPANY (improperly named Home State County Mutual Insurance Company a/k/a Apollo Managing General Agency LLC d/b/a Apollo Group), Cross-Defendants in the above-styled cause, and file this Plea in Abatement objecting to the Court's consideration of this cause on the merits and in support thereof would show the Court the following: I. INTRODUCTION Cross-Plaintiffs Carlos Silva and Apolinar Silva, are individuals allegedly residing in Hidalgo County, Texas. On September 14, 2023 Cross-Plaintiff filed this suit seeking damages for alleged violations of the Texas Deceptive Trade Practices - Consumer Protection Act ("DTPA") and Texas Business & Commerce Code. Cross-Plaintiffs allege that Cross-Defendants’ alleged Electronically Filed 12/27/2023 2:14 PM Hidalgo County District Clerks Reviewed By: Juan Galvan conduct violated §17.50(a)(4) of the Texas Business and Commerce Code in that it represents conduct prohibited by Article 21.21 of the Texas Insurance Code. Cross-Defendants seek to abate this action because Cross-Plaintiffs have failed to provide proper notice of their claims under the DPTA. This failure has prevented Cross- Defendants from exercising important rights under the DPTA to evaluate Cross-Plaintiffs’ claims. II. ARGUMENTS AND AUTHORITIES The Court must abate these proceedings for sixty (60) days because Plaintiffs failed to give Defendants the sixty (60) day notice required by statute. The cross-plaintiff bears the burden of pleading and proving compliance with the DTPA's notice provisions. Keith v. Stoelting, Inc., 915 F.2d 996, 997 (5th Cir. 1990). Pursuant to Texas Business & Commerce Code §17.505(a), a consumer shall give written notice of the alleged DTPA violations at least sixty (60) days before filing the suit. Tex. Bus. & Com. Code §17.505(a). The DTPA's sixty (60) day notice requirement is designed to afford an opportunity for pre-suit negations and settlement to avoid lengthy and costly litigation; this requirement mandates a written notice prior to filing suit. Hines v. Hash, 843 S.W.2d 464, 467 (Tex. 1992). Because Cross-Plaintiffs did not comply with the sixty (60) day waiting period, Cross-Defendants' Plea in Abatement should be granted pursuant to Texas Bus. & Com. Code §17.505(d). §17.505(d), which states that the Court shall abate the suit if the Court, after a hearing, finds that the person is entitled to an abatement because notice was not provided as required. Because notice was not timely provided, the Court must, in accordance with statute, grant Cross-Defendants' Plea in Abatement. Pursuant to §17.505(e), this abatement should continue -2- Electronically Filed 12/27/2023 2:14 PM Hidalgo County District Clerks Reviewed By: Juan Galvan until the sixtieth (60th) day after the date that proper written notice is served upon Cross- Defendants. III. CONCLUSION WHEREFORE, PREMISES CONSIDERED, Cross-Defendants, APOLLO MANAGING GENERAL AGENCY, LLC AND HOME STATE COUNTY MUTUAL INSURANCE COMPANY request that this suit be stayed and abated until sixty (60) days after proper notice is served. Cross-Defendants further request such other and further relief to which Cross-Defendants may be justly entitled. Respectfully submitted, GONZALEZ CASTILLO MOYA, LLP By: /s/ Eduardo Moya Edward J. Castillo SBN: 24040658 Eduardo Moya SBN: 24105674 1317 E. Quebec Avenue McAllen, Texas 78503 (956) 618-0115 FAX: (956) 618-0445 Email: law@valleyfirm.com ATTORNEYS FOR CROSS-DEFENDANTS, APOLLO MANAGING GENERAL AGENCY, LLC AND HOME STATE COUNTY MUTUAL INSURANCE COMPANY (improperly named Home State County Mutual Insurance Company a/k/a Apollo Managing General Agency LLC d/b/a Apollo Group) -3- Electronically Filed 12/27/2023 2:14 PM Hidalgo County District Clerks Reviewed By: Juan Galvan CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing document has been forwarded to all counsel of record via electronic filing service, on this 27th day of December, 2023. /s/ Eduardo Moya Eduardo Moya \\efileroom\firm\Data\data\APOLLO\S\Silva, C. v. Apollo 72.319\mtn-12222023-stay & plea in abatement.rv.wpd -4- Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Regina Vargas on behalf of Eduardo Moya Bar No. 24105674 rvargas@valleyfirm.com Envelope ID: 82891292 Filing Code Description: Motion (No Fee) Filing Description: DEFENDANTS APOLLO MANAGING GENERAL AGENCY, LLC AND HOME STATE COUNTY MUTUAL INSURANCE COMPANY'S MOTION TO STAY PROCEEDINGS AND PLEA IN ABATEMENT Status as of 12/27/2023 2:23 PM CST Associated Case Party: Juan RamonRodriguez Name BarNumber Email TimestampSubmitted Status MELANIE BARRIETNEZ MEL@POPEPENA.COM 12/27/2023 2:14:31 PM SENT Pope & Pena PC info@popepena.com 12/27/2023 2:14:31 PM SENT Associated Case Party: Austin Traffic Signal Construction Co. Inc. Name BarNumber Email TimestampSubmitted Status Robert CTurner robertturner@silveralaw.com 12/27/2023 2:14:31 PM SENT Candy Ryan cryan@silveralaw.com 12/27/2023 2:14:31 PM SENT File Clerk notice@silveralaw.com 12/27/2023 2:14:31 PM SENT Associated Case Party: HOME STATE COUNTY MUTUAL INSURANCE COMPANY A/K/A APOLLO MANAGING GENERAL AGENCY, LLC D/B/A APOLLO GROUP Name BarNumber Email TimestampSubmitted Status Eduardo Moya edmoya@valleyfirm.com 12/27/2023 2:14:31 PM SENT GONZALEZ CASTILLO, LLP law@valleyfirm.com 12/27/2023 2:14:31 PM SENT Edward Castillo ecastillo@valleyfirm.com 12/27/2023 2:14:31 PM SENT Associated Case Party: Carlos Silva Name BarNumber Email TimestampSubmitted Status The Pruneda Law Firm PLLC michael@michaelpruneda.com 12/27/2023 2:14:31 PM SENT Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Regina Vargas on behalf of Eduardo Moya Bar No. 24105674 rvargas@valleyfirm.com Envelope ID: 82891292 Filing Code Description: Motion (No Fee) Filing Description: DEFENDANTS APOLLO MANAGING GENERAL AGENCY, LLC AND HOME STATE COUNTY MUTUAL INSURANCE COMPANY'S MOTION TO STAY PROCEEDINGS AND PLEA IN ABATEMENT Status as of 12/27/2023 2:23 PM CST Case Contacts Name BarNumber Email TimestampSubmitted Status JAY PENA INFO@POPEPENA.COM 12/27/2023 2:14:31 PM SENT JAY PENA j.pena@popepena.com 12/27/2023 2:14:31 PM SENT