Charles O. "Chuck" Grigson, Gerald Hooks, and Leslie Hooks v. State ( 2015 )

ACCEPTED
03-15-00436-CV
6602220
THIRD COURT OF APPEALS
AUSTIN, TEXAS
8/21/2015 1:52:35 PM
JEFFREY D. KYLE
CLERK
NO. 03-15-00436-CV
___________________________________________________
FILED IN
3rd COURT OF APPEALS
IN THE COURT OF APPEALS AUSTIN, TEXAS
THIRD JUDICIAL DISTRICT COURT 8/21/2015 1:52:35 PM
JEFFREY D. KYLE
AUSTIN, TEXAS Clerk
___________________________________________________
CHARLES O. “CHUCK” GRIGSON,
APPELLANT
VS.
THE STATE OF TEXAS, THE TEXAS DEPARTMENT OF INSURANCE,
THE TEXAS COMMISSIONER OF INSURANCE;
and FARMERS GROUP, INC. ET AL.,
APPELLEES
___________________________________________________
On Appeal from the 261st Judicial District Court of Travis County, Texas
Cause No. D-1-GV-02-002501
___________________________________________________
APPELLANT GRIGSON’S AMENDED EMERGENCY
MOTION TO STAY THE SENDING OF CLASS NOTICE
___________________________________________________
Joe K. Longley Philip K. Maxwell
LAW OFFICES OF JOE K. LAW OFFICE OF PHILIP K.
LONGLEY MAXWELL
State Bar No. 12542000 State Bar No. 13254000
1609 Shoal Creek Blvd. #100 1609 Shoal Creek Blvd #100
Austin, Texas 78701 Austin, Texas 78701
512-477-4444 512-947-5434
Attorneys for Appellant Grigson
TO THE HONORABLE COURT OF APPEALS:
COMES NOW, Appellant Charles O. “Chuck: Grigson [“Grigson”] who
files this Amended Emergency Motion to Stay Sending of Class Notice pursuant to
§51.014(a)(3) and (b), Texas Gov’t Code and Rules 9, 10 and 29.5 of the Texas
Rules of Appellate Procedure. Grigson seeks emergency relief pursuant to Rule
10.3(a)(3), Texas Rules of Appellate Procedure, and in support thereof,
respectfully shows the Court the following:
1. Grigson seeks Emergency Relief based upon a new threat made by Farmers
Appellees.
2. On Thursday, August 20, 2015 at approximately 4:44 PM, Counsel for
Grigson received an email containing a letter from M. Scott Incerto, lead counsel
for the Farmers Appellees, making the following threat to the status quo of
Grigson’s (and class members’) rights as they currently are pending before this
Court:
Grigson’s Emergency Motion to Stay the Sending of Class Notice,
which also seeks a discretionary stay, remains undecided.
In sum, because no stay (automatic or discretionary) is in effect and
because Farmers has been expressly ordered to disseminate Class
Notice by September 4, 2015, Farmers will proceed with the
issuance of Class Notice. The Settlement administrator, Rust
Consulting, as Farmers’ agent, will proceed with commencing the
printing process for the Class Notice on Tuesday, August 25, 2015,
in order to be in a position to place the Class Notice in the mail on
September 4, 2015.
Exhibit 1 – Incerto’s letter to counsel for Grigoson (Emphasis added).
APPELLANT GRIGSON’S AMENDED EMERGENCY
MOTION TO STAY CLASS NOTICE 2
3. Farmers now attempts to disrupt the status quo currently existing in this
appeal by adversely affecting and irreparably harming the rights belonging to
Grigson (and other class members) who seeks to have his appeal decided without
the harm caused by the sending of a class notice. The potential wasting of over
$2.5 million dollars of policyholder funds prior to this Court’s resolution of this
appeal will misinform and confuse the putative class members and interfere with
this Court’s jurisdiction to determine whether the 2015 order before this Court and
the notice that it requires can be sustained:
When a trial court preliminarily certifies a settlement-only class
action, the effect on the course of the proceedings is immediate,
significant, and perhaps irreparable if it is later determined that the
class cannot be maintained.”
McAllen Medical Center, Inc. v. Cortez, 66 S.W.3d 227, 234 (Tex. 2001).
(Emphasis added).
4. In July of 2003, this Court issued an order using the exact wording of Cortez
to stop the class notice from being sent in the 2003 settlement. See Exhibit 2.
5. Here, just as in Cortez, Farmers threatens to send notice bearing the “trial
court’s imprimatur” as a fait accompli to prime the class to participate in a
settlement that has not been subject to the stringent requirements of Rule 42, nor to
the appellate review of the trial court’s July 6, 2015 order.
6. Grigson, in responding to the State and Farmers’ Joint Motion to Dismiss for
Lack of Jurisdiction, has detailed the State and Farmers’ unlawful agreement to
APPELLANT GRIGSON’S AMENDED EMERGENCY
MOTION TO STAY CLASS NOTICE 3
attempt to abrogate this Court’s statutory jurisdiction to decide this case, and the
extraordinary lengths they’ve already taken to implement it. 1
7. Now the aim of Farmers is to unilaterally abrogate this Court’s inherent
jurisdiction “to determine its own jurisdiction” by destroying the status quo
through the sending class notice prior to this Court’s determination of its own
jurisdiction. See Texas Gov’t Code, Section 22.220(c) [“each Court of Appeals
may, on affidavit or otherwise, as the Court may determine, ascertain the matters
of fact that are necessary to the proper exercise of its jurisdiction”]; Dallas County
Appraisal District v. Funds Recovery, Inc., 887 S.W.2d 465, 468 (Tex.App.—
Dallas 1994, writ. denied). [“We must inquire into our own jurisdiction even if it
is necessary to do so sua sponte.”] This is the very jurisdiction Farmers and the
State have invoked with the filing of their Joint Motion to Dismiss.
8. Farmers is likewise attempting to use the trial court’s order in a manner that
“interferes with or impairs the jurisdiction of the appellate court or the
effectiveness of any relief sought or that may be granted on appeal.” Rule 29.5
Texas Rules of Appellate Procedure.
9. Farmers threat not only interferes with the jurisdiction of this Court, but
likewise interferes with the Court’s briefing schedule. By having Rust Associates
1
Appellees have contested this Court’s jurisdiction pursuant to a Motion to Dismiss which has
bene fully briefed by the parties and is pending before the Court. See Motion filed July 17,
2015; Grigson’s Response filed July 31, 2015, Appellee’s Reply filed August 12, 2015 and
Grigson’s Sur-Reply filed August 14, 2015.
APPELLANT GRIGSON’S AMENDED EMERGENCY
MOTION TO STAY CLASS NOTICE 4
(Farmers’ agent) begin the printing of the class notices on August 25, 2015 – the
day before Appellant’s brief is due – August 26, 2015, Farmers interferes with
Grigson’s ability to completely brief all of the issues and comply with the briefing
schedule set by the Court.
Nevertheless, Grigson will endeavor to complete and file his brief on the day
scheduled.
WHEREFORE, PREMISES CONSIDERED, Grigson prays that Court enter
an appropriate order granting this Amended Emergency Motion to Stay the
Sending of Class Notice and that the Court do so post haste to prevent irreparable
harm caused by the destruction of the status quo now existing prior to notice being
sent. Grigson further requests that this Court grant such other and further relief to
which he may show himself justly entitled.
Respectfully submitted,
CHARLES O. “CHUCK” GRIGSON
APPELLANT
LAW OFFICES OF JOE K. LONGLEY
_______/s/ Joe K. Longley__________
Joe K. Longley
State Bar No. 12542000
1609 Shoal Creek Blvd. #100
Austin, Texas 78701
512-477-4444 PHONE
512-477-4470 FAX
APPELLANT GRIGSON’S AMENDED EMERGENCY
MOTION TO STAY CLASS NOTICE 5
LAW OFFICE OF PHILIP K. MAXWELL
_______/s/ Philip K. Maxwell_________
Philip K. Maxwell
State Bar No. 13254000
1609 Shoal Creek Blvd #100
Austin, Texas 78701
512-947-5434 PHONE
ATTORNEYS FOR APPELLANT,
CHARLES O. “CHUCK” GRIGSON
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the above
and foregoing document was served on the following counsel of record
eFile.TXCourts.gov electronic filing system on August 21, 2015.
Joshua Godbey Marcy Greer
Office of the Attorney General of Alexander Dubose Jefferson &
Texas Townsend, LLP
P. O. Box 12548 515 Congress Ave., Suite 2350
Austin, TX 78711-2548 Austin, TX 78701
Sara Waitt Michael J. Woods
General Counsel 8620 N. New Braunfels, Ste. 522
Texas Department of Insurance San Antonio, TX 78217
P. O. Box 149104
Austin, TX 78714-9104 Joseph C. Blanks
PO Box 999
M. Scott Incerto Doucette, TX 75942
Norton Rose Fulbright
98 San Jacinto Blvd #1100
Austin, TX 78701
_______/s/ Joe K. Longley__________
Joe K. Longley
APPELLANT GRIGSON’S AMENDED EMERGENCY
MOTION TO STAY CLASS NOTICE 6
CERTIFICATE OF CONFERENCE
Grigson’s counsel has conferenced with Scott Incerto, lead counsel for the
Farmers Parties; and Ryan Mindell, counsel for the State of Texas, regarding this
motion. Both oppose granting the emergency relief sought by this motion.
_______/s/ Joe K. Longley__________
Joe K. Longley
CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4(i)
I certify that the foregoing document contains 846 words and complies with
the word limit set forth in Texas Rule of Appellate Procedure 9.4(i).
_______/s/ Joe K. Longley__________
Joe K. Longley
APPELLANT GRIGSON’S AMENDED EMERGENCY
MOTION TO STAY CLASS NOTICE 7
VERIFICATION
THE STATE OF TEXAS §
COUNTY OF TRAVIS §
BEFORE ME, the undersigned authority, on this day personally appeared
Joe K. Longley, a person whose identity is known to me. After I administered an
oath to him, upon his oath, he said the following:
"My name is Joe K. Longley, and I am capable of making this affidavit, and
the facts in this affidavit are true and within my personal knowledge. I am lead
counsel for Appellant Charles O "Chuck" Grigson. All documents included in the
APPENDIX filed with this Amended Emergency Motion to Stay the Sending of
Class Notice are true and correct copies of documents filed with this Court or
presented to the trial court in this action. I have read the Amended Emergency
Motion to Stay Sending of Class Notice and the factual statements contained
therein that are not otherwise established by this record are within my personal
knowledge and are true and correct."
"Further, Affiant sayeth not."
``/+-~
oe K. L o n g l e y · ~
SUBSCRIBED AND SWORN TO before me on this the 21st day of August, 2015.
,,,,f~f;'~t':;,,_ MARYANN PARRIS
m7,. -:&_ -
"'9Ji''·
f "( ·,;oi
\~·. ,:~j ~ Notary Public, State of Texas
My Commission Expires Notary~oIT~
"·7.:t?:f;,t~·"' July 08, 2018
My Commission Expires::fuk{ 2, 1 .lo(B
VERIFICATION OF JOE K. LONGLEY 1
NO. 03-15-00436-CV
___________________________________________________
IN THE COURT OF APPEALS
THIRD JUDICIAL DISTRICT COURT
AUSTIN, TEXAS
___________________________________________________
CHARLES O. “CHUCK” GRIGSON,
APPELLANT
VS.
THE STATE OF TEXAS, THE TEXAS DEPARTMENT OF INSURANCE,
THE TEXAS COMMISSIONER OF INSURANCE; and FARMERS GROUP,
INC. ET AL.,
APPELLEES
___________________________________________________
On Appeal from the 261st Judicial District Court of Travis County, Texas
Cause No. D-1-GV-02-002501
___________________________________________________
APPELLANT GRIGSON’S APPENDIX IN SUPPORT OF RESPONSE TO APPELLEES’
JOINT MOTION TO DISMISS APPEAL FOR LACK OF JURISDICTION AND REQUEST
FOR EXPEDITED CONSIDERATION OF MOTION
___________________________________________________
EXHIBIT 1 8-20-2015 Letter from M. Scott Incerto to Appellants
EXHIBIT 2 7-7-2003 Third Court of Appeals Order Staying the Sending
of Class Notice
EXHIBIT 1
A.
NORTON ROSE FULBRIGHT
August 20, 2015
Norton Rose Fulbright US LLP
Via E-Mail 98 San Jacinto Boulevard, Suite 1100
Austin, Texas 78701-4255
United States
Joe K. Longley Direct line +1 512 536 4529
1609 Shoal Creek Blvd. #100 scott.incerto@nortonrosefulbright.com
Austin, TX 75942
Joe@JoeLongley.com Tel +1512474 5201
Fax +1 512 536 4598
nortonrosefulbright.com
Joseph C. Blanks
P.O. Box 999
Doucette, TX 75942
blanxlex@gmail.com
Re: Cause No. D-1-GV-02-002501, State of Texas, et al. v. Farmers Group, Inc., et al., In
the 261st Judicial District Court of Travis County, Texas; Cause No. 03-15-00436-CV,
Grigson et al. v. State of Texas et al., In the Third Court of Appeals, Austin, Texas
Dear Mr. Longley and Mr. Blanks:
As you know, the district court's Order of Preliminary Approval requires that Farmers send out
class notice by September 4, 2015. In light of the appellate proceedings that you initiated,
Farmers has already delayed the issuance of the Class Notice as much as possible. The
purpose of this letter is to notify you that, barring an adverse ruling by the court of appeals on
Mr. Grigson's Emergency Motion to Stay the Sending of Class Notice, Farmers will send out
notice on September 4th as ordered.
Farmers' decision to proceed with the issuance of notice is based in the first instance on the
absence of interlocutory appellate jurisdiction in this case to enforce any alleged stay (automatic
or discretionary). As we have pointed out in our briefing papers, the district court's Order of
Preliminary Approval did not "certif[y] or refuseO to certify a class in a suit brought under Rule
11
42 and instead only preliminarily approved the terms of the Settlement Agreement and
approved class notice-neither of which are subject to the narrow interlocutory jurisdictional
window afforded under Texas law. TEX. Crv. PRAC. & REM. CODE ANN. § 51.014(a)(3); see also
McAllen Med. Ctr., Inc. v. Cortez, 66 S.W.3d 227, 234 (Tex. 2001) ("[T]he trial court's
preliminary approval of the a
settlement has no binding force . . . . appellate review is
premature."); Citgo Ref. and Mktg., Inc. v. Garza, 94 S.W.3d 322, 327 (Tex. App.-Corpus
Christi-Edinburg 2002, no pet.) ("[N]o Texas court has held that an order approving the form of
notice to a class is subject to interlocutory appeal. . . . the present attempted appeal is
dismissed for want of jurisdiction."). These and related arguments are laid out in the Joint
Motions to Dismiss Mr. Grigson's and Mr. and Mrs. Hookses' appeals; the Joint Reply in further
support of the Motions to Dismiss; and the Joint Response to Mr. Grigson's Emergency Motion
to Stay.
Moreover, because the automatic stay under Remedies Code§ 51.014(b) is purely statutory in
nature, and not jurisdictional, the court of appeals must first have interlocutory appellate
jurisdiction to trigger or impose any stay, which it does not have here. See Roccaforte v.
Norton Rose Fulbright US LLP is a limited liability partnership registered under the laws of Texas. 56179992
Norton Rose Fulbright US LLP, Norton Rose Fulbright LLP, Norton Rose Fulbright Australia, Norton Rose Fulbright Canada LLP and Norton Rose
Fulbright South Africa Inc are separate legal entities and all of them are members of Norton Rose Fulbright Verein, a Swiss verein. Norton Rose
Fulbright Verein helps coordinate the activities of the members but does not itself provide legal services to clients. Details of each entity, with certain
regulatory information, are available at nortonrosefulbright.com.
.A
Joe K. Longley NORTON ROSE FULBRIGHT
Joseph C. Blanks
August 20, 2015
Page 2
Jefferson Cnty. , 341 S.W.3d 919, 923 (Tex. 2011) ("[T]he stay imposed by section 51 .014(b) ...
differs from a situation in which the relevant statute vests 'exclusive jurisdiction' in a particular
forum .... as we have noted, 'a court's action contrary to a statute or statutory equivalent
means the action is erroneous or 'voidable,' not that the ordinary appellate or other direct
procedures to correct it may be circumvented ."').
Even if an automatic stay were in effect (which it is not), the stay would only apply to "all other
proceedings in the trial court" and would not apply to the issuance of Class Notice which, in this
case , does not require any further action in or by the trial court. See TEX. C1v. PRAC. & REM.
CODE ANN. § 51 .014(b). Mr. Grigson concedes this fact by seeking only a discretionary stay
from the court of appeals in his Emergency Motion to Stay the Sending of Class Notice.
There is currently no discretionary stay of class notice in effect either. The district court denied
Mr. Grigson's request for a discretionary stay, and Grigson's Emergency Motion to Stay the
Sending of Class Notice, which also seeks a discretionary stay, remains undecided.
In sum, because no stay (automatic or discretionary) is in effect and because Farmers has been
expressly ordered to disseminate Class Notice by September 4, 2015, Farmers will proceed
with the issuance of Class Notice. The settlement administrator, Rust Consulting, as Farmers'
agent, will proceed with commencing the printing process for the Class Notice on Tuesday,
August 25, 2015, in order to be in a position to place the Class Notice in the mail on September
4, 2015.
;Ja,'s, ~
M. Scott lncerto
MSl/cml
cc: Joshua Godbey - (via e-mail: joshua.godbey@texasattorneygeneral.gov)
Ryan S. Mindell - (via email: ryan .mindell@texasattorneygeneral.gov)
Jennifer S. Jackson - (via email: jennifer.jackson@texasattorneygeneral.gov)
Michael Woods - (via e-mail: michaeljwoods@sbcglobal.net)
56179992
EXHIBIT 2
7/14/2015 www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=c6c99f3c­d903­42e2­b690­18de6704d196&coa=coa03&DT=Opinion&MediaID=8a6d891…
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03­03­00374­CV
Jan Lubin, Gilberto Villanueva, and Michael Paladino, Appellants
v.
Farmers Group, Inc.; Farmer Underwriters Association; Fire Underwriters Association;
Farmers Insurance Exchange; Fire Insurance Exchange; Texas Farmers Insurance Company,
Mid­Century Insurance Company of Texas; Mid­Century Insurance
Company; et al, Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. GV202501, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING
O R D E R
PER CURIAM
Appellants seek an emergency stay of the sending of notices to the class preliminarily certified below by
the district court until this Court rules in this interlocutory appeal. Because the district court's preliminary
certification of a settlement­only class will cause immediate, significant and potentially irreparable
effects in this case and to prevent interference or impairment with this Court's jurisdiction or the
effectiveness of any appellate relief we may subsequently grant, the Order of Preliminary Approval,
signed by the district court on June 27, 2003, is hereby stayed in all respects until further order of this
Court.
It is ordered on this the 7th day of July, 2003.
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=c6c99f3c­d903­42e2­b690­18de6704d196&coa=coa03&DT=Opinion&MediaID=8a6d8917­… 1/2
7/14/2015 www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=c6c99f3c­d903­42e2­b690­18de6704d196&coa=coa03&DT=Opinion&MediaID=8a6d891…
Before Justices B. A. Smith, Yeakel and Puryear
http://www.search.txcourts.gov/SearchMedia.aspx?MediaVersionID=c6c99f3c­d903­42e2­b690­18de6704d196&coa=coa03&DT=Opinion&MediaID=8a6d8917­… 2/2