in Re: Allstate Fire and Casualty Insurance Company and Latina Foster

DENY and Opinion Filed May 24, 2021
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00801-CV
IN RE ALLSTATE FIRE AND CASUALTY INSURANCE COMPANY AND
LATINA FOSTER, Relators
Original Proceeding from the County Court at Law No. 5
Dallas County, Texas
Trial Court Cause No. CC-20-00179-E
MEMORANDUM OPINION ON REHEARING
Before Justices Osborne, Reichek, and Smith
Opinion by Justice Smith
On the Court’s own motion, we withdraw our opinion and order of April 12,
2021. The following is now the opinion of the Court.
Before the Court are relators’ petition for writ of mandamus, real party’s
response, and relators’ reply to the response. Relators contend they are entitled to
mandamus relief because the trial court abused its discretion by denying their special
exceptions complaining about real party’s failure to plead a claim for breach of
contract, and by failing to quash relator Latina Foster’s deposition and limit the
scope of discovery because Foster’s deposition and any additional discovery
regarding relators’ handling of the claim are premature. Entitlement to mandamus
relief requires relators to show both that the trial court clearly abused its discretion
and that relators have no adequate appellate remedy. In re Prudential Ins. Co., 148
S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). Although we question the
scope of the identified deposition topics and discovery requests, based on relators’
arguments and the record, we conclude relators have failed to show a clear abuse of
discretion. Further, in light of the Texas Supreme Court’s recent opinion in In re
State Farm Mutual Automobile Insurance Company, No. 19-0791, 2021 WL
1045651 (Tex. Mar. 19, 2021) (orig. proceeding), the trial court did not abuse its
discretion by denying relators’ special exceptions. Id. (concluding insurer not
required to plead a breach of contract claim to recover for extra-contractual claims).
According, we deny relators’ petition for writ of mandamus.
/Craig Smith/
CRAIG SMITH
JUSTICE
200801F.P05
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