Opinion
No. 05-20-00801-CV
05-24-2021
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