Jada Etienne v. State Farm Lloyds ( 2019 )

Affirmed in Part; Dismissed in Part; and Memorandum Opinion filed
September 10, 2019.
In the
Fourteenth Court of Appeals
NO. 14-18-00665-CV
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
MEMORANDUM OPINION
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.
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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
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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.
proceeding)). A trial court can defer signing an order dismissing the case for a
reasonable time so it can rule on such pending matters. See In re Bennett, 960 S.W.2d
35, 38 (Tex. 1997) (orig. proceeding).
Even after it signs a dismissal order, the trial court retains jurisdiction over
the case until its plenary power expires. See id. “[T]he signing of an order dismissing
a case, not the filing of a notice of nonsuit, is the starting point for determining when
a trial court’s plenary power expires.” Id.
III. CHALLENGE TO THE ORDER APPOINTING AN UMPIRE
Etienne’s notice of non-suit had no effect on State Farm’s pending motion for
appointment of an umpire. Indeed, as Etienne implicitly acknowledged in the trial
court, an application for appointment of an umpire need not be part of a lawsuit at
all. For example, Local Rule 3.5.1(e) of the Civil Trial Division of the Harris County
District Courts provides that the district courts’ ancillary docket includes “[r]equests
before any suit has been filed to appoint umpires or arbitrators.” HARRIS CTY. (TEX.)
CIV. DIST. CT. LOC. R. 3.5.1(e) (emphasis added).1 After this suit was filed in the
Harris County Civil Court at Law No. 2, however, either party could move for
1
When Etienne attempted to take advantage of this provision by placing an application for
appointment of an umpire on the Harris County Civil District Courts’ ancillary docket, she already
had a pending suit on the same subject in Harris County Civil Court at Law No. 2.
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appointment of an umpire as part of that suit. State Farm did so, and Etienne filed
no opposition.
On appeal, Etienne asserts that because she non-suited her own claims the
night before the hearing on State Farm’s motion, the trial court both lacked
jurisdiction to proceed with the scheduled hearing and to rule on State Farm’s
pending motion, and that the trial court abused its discretion in doing so. But as
discussed above, a trial court does not lose jurisdiction upon the plaintiff’s filing of
a notice of non-suit. The policy gave both Etienne and State Farm the contractual
right to seek court appointment of an umpire, regardless of whether Etienne or State
Farm ever pleaded a cause of action for damages or for declaratory or equitable
relief. Because a request for appointment of an umpire is a “stand-alone” request, it
was unaffected by Etienne’s notice of non-suit.
Etienne argues in the alternative that the trial court abused its discretion in
granting State Farm’s motion because the insurance policy required State Farm to
give her ten days’ written notice before moving for appointment of an umpire, and
she contends that State Farm failed to do so. But, Etienne neither responded to State
Farm’s motion for appointment of an umpire nor appeared at the hearing on the
motion. Having failed to timely raise this complaint, it is waived. See TEX. R. APP.
P. 33.1(a)(1). Moreover, and as State Farm points out, the trial court’s local rules
provide that “[f]ailure to file a response may be considered a representation of no
opposition.” HARRIS CTY. (TEX.) CO. CT. AT LAW LOC. R. 3.3.3. Given Etienne’s
failure to respond to State Farm’s motion or to appear at the hearing, the trial court
did not abuse its discretion in granting the motion.
We overrule Etienne’s first issue, and we affirm the portion of the trial court’s
judgment appointing an umpire.
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IV. CHALLENGE TO THE SANCTIONS ORDER
In Etienne’s second issue, she argues that the trial court abused its discretion
in imposing monetary sanctions against her trial counsel Eric Dick and the Dick Law
Firm for signing and filing a petition groundlessly asserting that State Farm had
refused to participate in the appraisal process. Because Etienne lacks standing to
appeal the sanctions order, we lack jurisdiction to review it.
Standing is implicit in the concept of subject-matter jurisdiction. Tex. Ass’n
of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Thus, an appellate
court lacks jurisdiction to review a ruling appealed by a person without standing. See
id. at 444. A person generally has standing to appeal a ruling only if the person is
personally aggrieved by it. Cf. Austin Nursing Ctr. v. Lovato, 171 S.W.3d 845, 848
(Tex. 2005). An appealing party may not complain of errors that do not injuriously
affect that party or that merely affect the rights of others. See Torrington Co. v.
Stutzman, 46 S.W.3d 829, 843 (Tex. 2000).
Here, the trial court sanctioned Dick and the Dick Law Firm, not Etienne.
Because the sanctions order did not injure Etienne and instead affected only the
rights of others, she lacks standing to appeal it.
Further, neither Dick nor the Dick Law Firm have attempted to appeal the
sanctions order. Neither filed a separate notice of appeal, and in Etienne’s original
and amended notice of appeal both identify Etienne as the sole appellant. Her brief
in this appeal was filed by her appellate counsel Rogelio Garcia solely on behalf of
Etienne, who is the only person identified as Garcia’s client.
Because no one personally aggrieved by the sanctions order has appealed it,
we lack jurisdiction to review the order. We accordingly dismiss Etienne’s second
issue without addressing the merits.
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V. CONCLUSION
When the respective appraisers for the insured and the insurer are unable to
agree on an umpire to resolve the deadlock, the policy may permit either party to
apply to a court for appointment of an umpire, as was done here. The parties do not
have to bring claims against one another to take advantage of such a policy provision
but can apply for appointment of an umpire even if neither party asks the court for
any other relief. Here, State Farm applied for appointment of an umpire as part of
the suit in which the trial court already had acquired jurisdiction over both of the
parties, and Etienne failed to timely oppose the motion. We therefore conclude that
the trial court had both the jurisdiction and the discretion to appoint an umpire before
dismissing Etienne’s claims, and we affirm the portion of the judgment appointing
an umpire.
Because Etienne lacks standing to appeal the order sanctioning her trial
counsel and his firm, and because neither the attorney nor the firm have appealed
the order, we dismiss the remainder of the appeal for want of jurisdiction.
/s/ Tracy Christopher
Justice
Panel consists of Justices Christopher, Spain, and Poissant.
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