In re Lloyds

• Decision Date: 15 August 2011
• Docket Number: No. 13–11–00070–CV.,13–11–00070–CV.
• Citation: 437 S.W.3d 1
• Parties: In re CYPRESS TEXAS LLOYDS.
• Court: Texas Court of Appeals

437 S.W.3d 1

In re CYPRESS TEXAS LLOYDS.

No. 13–11–00070–CV.

Court of Appeals of Texas,

Corpus Christi–Edinburg.

Aug. 15, 2011.

Thomas M. Fountain, Ann Tomino Leblanc, The Woodlands, TX, for relator.

Amber Anderson, Mynor Eddie Rodriguez, Houston, TX, Gilberto Hinojosa, Brownsville, TX, for real party in interest.

Before Chief Justice VALDEZ and Justices RODRIGUEZ, and PERKES.

OPINION

Opinion by Justice PERKES.¹

By petition for writ of mandamus, relator, Cypress Texas Lloyds (“Cypress”), seeks to compel the trial court to withdraw its order denying Cypress's motion to abate the underlying litigation and to require the real party in interest, Patricia Martinez, to provide presuit notice in compliance with the Texas Insurance Code and to submit to an examination under oath. ² We deny the petition for writ of mandamus.³

I. Background

Hurricane Dolly struck the Rio Grande Valley on July 23, 2008, damaging Martinez's roof and allowing water incursion into the home. At the time of the storm, Martinez had homeowner's insurance through a policy issued by Cypress. Martinez filed an insurance claim regarding the property damage. After an inspection, Cypress paid Martinez $4,329.53 for her property damages. Martinez was dissatisfied with the payment because it was insufficient to make the necessary repairs to her home. Martinez filed suit against Cypress and sent Cypress additional written notice of her claims that same day. Cypress filed its answer to the lawsuit and, one month later, filed a verified motion to abate the suit on grounds that Martinez had failed to send notice of the lawsuit or submit to an examination under oath.

The trial court held a hearing on Cypress's motion for abatement. At the hearing, Cypress requested the trial court to take judicial notice of the pleadings on file. The trial court granted Cypress's request by stating that it would take judicial notice of “everything in the Court's file.” The trial court denied Cypress's motion to abate, and this original proceeding ensued.

By two issues, Cypress contends that the trial court erred in refusing to abate the case because (1) Martinez failed to provide the presuit notice required by the Texas Insurance Code, and (2) Martinez failed to submit to an examination under oath as required by her homeowner's insurance policy. In response, Martinez asserts, inter alia, that she gave proper and sufficient notice to Cypress on July 13, 2010, and therefore Cypress's request for abatement is moot. Martinez further asserts that Cypress failed to request an examination under oath prior to making its claims decision, suit has now been filed, and Cypress could obtain the same information by deposition.

II. Standard of Review

Mandamus is an “extraordinary” remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex.2007) (orig. proceeding); see In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex.2008) (orig. proceeding). To obtain mandamus relief, the relator must show that the trial court clearly abused its discretion and that the relator has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex.2004) (orig. proceeding); see In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 462 (Tex.2008) (orig. proceeding). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable as to constitute a clear and prejudicial error of law, or if it clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex.2005) (orig. proceeding) (per curiam); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding). To satisfy the clear abuse of discretion standard, the relator must show that the trial court could “reasonably have reached only one decision.” Liberty Nat'l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 630 (Tex.1996) (quoting Walker, 827 S.W.2d at 840).

Historically, mandamus was treated as an extraordinary writ that would issue “only in situations involving manifest and urgent necessity and not for grievances that may be addressed by other remedies.” Walker, 827 S.W.2d at 840. Now, whether a clear abuse of discretion can be adequately remedied by appeal depends on a careful analysis of the costs and benefits of interlocutory review. See In re McAllen Med. Ctr., Inc., 275 S.W.3d at 462. Sometimes, “[a]n appellate remedy is ‘adequate’ when any benefits to mandamus review are outweighed by the detriments.” In re Prudential Ins. Co. of Am., 148 S.W.3d at 136. According to the Texas Supreme Court:

Mandamus review of significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights from impairment or loss, allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments, and spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.

Id.

When a claimant fails to give a statutory notice that is a prerequisite to filing suit and the trial court denies the defendant's timely request for abatement, that defendant is entitled to seek review of the court's denial by mandamus. See Hines v. Hash, 843 S.W.2d 464, 469 (Tex.1992) (concluding there is no adequate remedy by appeal for the failure to give statutory notice under the Texas Deceptive Trade Practices Act) ⁴; Am. Online, Inc. v. Williams, 958 S.W.2d 268, 271 (Tex.App.-Houston [14th Dist.] 1997, no pet.) (same); see also In re Liberty Mut. Fire Ins. Co., No. 14–09–00876–CV, 2010 WL 1655492, at *5–6, 2010 Tex.App. LEXIS 3063, at **16–17 (Tex.App.-Houston [14th Dist.] Apr. 27, 2010, orig. proceeding) (mem. op.) (concluding there is no adequate remedy by appeal for the failure to give statutory notice under the Texas Insurance Code); In re Behr, No. 04–05–00895–CV, 2006 WL 468001, at *2–3, 2006 Tex.App. LEXIS 1588, at *7 (Tex.App.-San Antonio Mar. 1, 2006, orig. proceeding) (mem. op.) (same). Similarly, when an insured fails to give a required examination under oath, the trial court's refusal to allow abatement is reviewable by mandamus. In re Foremost County Mut. Ins. Co., 172 S.W.3d 128, 136 (Tex.App.-Beaumont 2005, orig. proceeding) (granting mandamus relief on grounds that the trial court had no discretion to deny abatement to allow an examination under oath and that relator had no adequate remedy on appeal).

III. Equitable Principles

As an initial matter, we address Martinez's contention that equitable principles bar our consideration of this petition for writ of mandamus. Martinez argues that Cypress waited sixty-two days after receiving her notice to request abatement of the lawsuit, and waited an additional eighty-eight days from the date the trial court denied the plea in abatement to file this petition for writ of mandamus.

Although mandamus is not an equitable remedy, its issuance is controlled largely by equitable principles. In re Int'l Profit Assocs., Inc., 274 S.W.3d 672, 676 (Tex.2009) (orig. proceeding) (per curiam). One such principle is that “[e]quity aids the diligent and not those who slumber on their rights.” Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex.1993) (orig. proceeding) (quoting Callahan v. Giles, 137 Tex. 571, 576, 155 S.W.2d 793, 795 (1941) (orig. proceeding)). To invoke the equitable doctrine of laches, the moving party ordinarily must show an unreasonable delay by the opposing party in asserting its rights and also the moving party's good faith and detrimental change in position because of the delay. In re Laibe Corp., 307 S.W.3d 314, 318 (Tex.2010) (orig. proceeding); Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 80 (Tex.1989). Under certain circumstances, a delay in the filing of a petition for writ of mandamus may be justified. In re Int'l Profit Assocs., Inc., 274 S.W.3d at 676; see In re SCI Tex. Funeral Servs., Inc., 236 S.W.3d 759, 761 (Tex.2007) (orig. proceeding) (holding that a delay of slightly less than six months did not constitute laches because the time was required to obtain records of numerous discovery hearings and brief issues for court).

In the instant case, the lawsuit was filed on July 13, 2010. Cypress filed its answer on or about August 16, 2010, and filed its motion to abate on September 15, 2010. The trial court held a hearing on the motion to abate on November 9, 2010. The trial court denied the motion to abate on November 12, 2010. Cypress filed the petition for writ of mandamus on February 11, 2011. Although Martinez generally asserts that this delay has resulted in a “detrimental” change in her position and increased costs of litigation, she has offered no specific evidence supporting or explaining this allegation. The Texas Supreme Court has held that a two-month delay in seeking mandamus relief is not necessarily unreasonable. In re Laibe Corp., 307 S.W.3d at 318; see Strickland v. Lake, 163 Tex. 445, 357 S.W.2d 383, 384 (Tex.1962) (orig. proceeding). Based upon the record before us, we similarly conclude that the delay was not unreasonable as a matter of law. In re Laibe Corp., 307 S.W.3d at 318. We therefore reject Martinez's argument that equitable considerations bar our consideration of this petition for writ of mandamus. We now turn to the merits of this original proceeding.

IV. The Notice Requirement

Under the Texas Insurance Code, “[a] person seeking damages in an action against another person under this subchapter must provide written notice to the other person not later than the 61st day before the date the action is filed.” Tex. Ins.Code Ann. § 541.154(a) (West 2009). The notice must advise the recipient of “the specific complaint” and “the amount of actual damages and expenses, including attorney's fees reasonably incurred in asserting the claim against the other person.”Id. § 541.154(b) (West 2009); see Richardson v. Foster & Sear, LLP, 257 S.W.3d 782, 786 (Tex.App.-Fort Worth 2008, no pet.); Williams v. Hills...