Violante et al v. Allstate Texas Lloyds et al

Filing 31

ORDER re 29 Opposed MOTION to Vacate. Case reopened on 12/19/18. Parties to respond by Friday, February 1, 2019.(Signed by Judge Micaela Alvarez) Parties notified.(klopez, 7)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION
ESTEBAN VIOLANTE, et al,
Plaintiffs,
VS.
ALLSTATE TEXAS LLOYDS, et al,
Defendants.

December 19, 2018
David J. Bradley, Clerk

§
§
§
§ CIVIL ACTION NO. 7:17-CV-335
§
§
§
§
ORDER

The Court now considers the opposed motion1 to vacate and reinstate filed by Esteban
and Margarita Violante (“Plaintiffs”) and the response2 filed by Allstate Texas Lloyds
(“Defendant”).3 After duly considering the record and relevant authorities, the Court GRANTS
Plaintiffs’ motion.
I.

Background

This is an insurance case arising from Defendant’s denial of Plaintiffs’ claim under their
home insurance policy following damage sustained from a hailstorm in Hidalgo County, Texas.4
On April 20, 2018, the Court abated the case at the parties’ request following Plaintiffs’
invocation of the appraisal process.5 The Court ordered the parties to file a status report or
stipulation of dismissal within ten days after completing appraisal. 6 The parties filed an agreed
stipulation of dismissal on October 19, 2018, whereby Plaintiffs voluntarily dismissed with

1

Dkt. No. 29.
Dkt. No. 30.
3
Defendant Thomas Fitzgerald was dismissed by the Court on November 17, 2017. See Dkt. No. 19.
4
Dkt. No. 1-2.
5
Dkt. No. 25.
6
Id. at p. 2.
2

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prejudice all claims, and the case was closed accordingly.7 The stipulation of dismissal provided
no information regarding the appraisal.
On November 15, 2018, Plaintiffs filed the instant motion, requesting relief under Federal
Rule of Civil Procedure (“Rule”) 60(b) and specifically citing Rule 60(b)(1) and 60(b)(6).8
Plaintiffs assert the parties’ appraisers “mistakenly inspected a property at 3101 Huisache and
submitted an appraisal award based on their inspection for 3104 Huisache.” 9 According to
Plaintiffs, the appraisal award was submitted on June 15, 2018.10 Defendant is opposed11 and
contends “Plaintiffs’ appraiser was aware of the mistake at least one month prior to Plaintiffs’
voluntary dismissal with prejudice.”12 Thus, Defendant argues Plaintiffs are not entitled to relief
under Federal Rule of Civil Procedure (“Rule”) 60(b)(1) or Rule 60(b)(6).13 The Court turns to
its analysis.
II.

Relief Under Rule 60(b)(1)

Plaintiffs request the Court to vacate and reinstate the case “under Rule 60(b) due to the
mistake of fact referenced in Exhibit A,” the attached affidavit of their appraiser, Doug Provazek
(“Mr. Provazek”). Thus, Plaintiffs implicitly request relief under Rule 60(b)(1). 14 Defendant
maintains “Plaintiffs [sic] failure to conduct due diligence with regards [sic] the initial agreed
appraisal award is not sufficient to establish mistake, inadvertence, surprise or excusable neglect
under Rule 60(b)(1).”15 The Court finds Plaintiffs are entitled to relief under Rule 60(b)(1).

7

Dkt. No. 27.
Dkt. No. 29.
9
Id. at pp. 1–2, ¶ 4.
10
Id. at p. 1, ¶ 3.
11
Dkt. No. 29 p. 3.
12
Dkt. No. 30 p. 3, ¶ 9.
13
Id.
14
See Fed. R. Civ. P. 60(b)(1).
15
Dkt. No. 30 p. 4, ¶ 13.
8

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Rule 60(b)(1) provides a party relief of a final judgment, order, or proceeding for
“mistake, inadvertence, surprise, or excusable neglect.”16 A motion under Rule 60(b)(1) must be
made “no more than a year after the entry of the judgment or order or the date of the
proceeding.”17 The Court may consider acts surrounding a voluntary dismissal to the extent the
parties agreed upon such dismissal or used such dismissal as strategy to pursue a new action. 18
Whether “to grant or deny relief under Rule 60(b) lies within the sound discretion of the district
court . . . .”19 “A court abuses its discretion “if it were to reopen a case under Rule 60(b)(1) when
the reason asserted as justifying relief is one attributable solely to counsel’s carelessness with or
misapprehension of the law or the applicable rules of court.”20 Moreover, a court may deny a
Rule 60(b)(1) motion “due to the ‘careless mistake of counsel.’”21 Finally, “[a] party remains
under a duty to take legal steps to protect his own interests.”22
First, Plaintiffs’ request is timely under Rule 60(b)(1). Second, it is Plaintiffs’ burden to
show such relief under Rule 60(b)(1) is warranted. In turn, Plaintiffs proffer Mr. Provazek’s
affidavit, which provides a synopsis of the appraisers’ mistake. Mr. Provazek states he and
Defendant’s appraiser, Alan Berryhill (“Mr. Berryhill”), signed and submitted an appraisal award
for 3104 Huisache, but “after comparing photos and paperwork [] [they] noticed the address did
not match the respective loss reports for 3104 Huisache produced by the parties for [Mr.

16

Fed. R. Civ. P. 60(b)(1). The Fifth Circuit has noted “at least three circuits have found that voluntary dismissal
with prejudice are final proceedings for purposes of Rule 60(b).” Yesh Music v. Lakewood Church, 727 F.3d 356,
362–63, n.16 (5th Cir. 2013) (citations omitted).
17
Fed. R. Civ. P. 60(c)(1).
18
Yesh Music, 727 F.3d at 363–64.
19
Rayford v. Karl Storz Endoscopy Am., Inc., 740 F. App’x 435, 436 (5th Cir. 2018) (quoting Edwards v. City of
Houston, 78 F.3d 983, 995 (5th Cir. 1996) (en banc)); see also Brittingham v. Wells Fargo Bank, N.A., 543 F. App’x
372, 373-74 (5th Cir. 2013) (per curiam) (unpublished).
20
Brittingham, 543 F. App’x at 374 (quoting Edward H. Bohlin Co., Inc. v. Banning Co., Inc., 6 F.3d 350, 357 (5th
Cir.1993)).
21
Rayford, 740 F. App’x at 436 (citing Brittingham, 543 F. App’x at 374).
22
Edward H. Bohlin Co., Inc., 6 F.3d at 357; see Yesh Music, 727 F.3d at 364–66 (Grady Jolly, E., dissenting).

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Provazek’s] records.”23 In sum, “[Mr. Provazek and Mr. Berryhill] had mistakenly inspected a
property at 3101 Huisache and submitted an appraisal award based on [their] inspection for 3104
Huisache.”24 Mr. Provazek continues to explain he re-inspected the property on September 19,
2018, “and [Mr. Berryhill] went to re-inspect[] somewhere between October 29th and November
2nd.”25 According to Mr. Provazek, the two appraisers conferred but failed to reach an
agreement, thus agreeing to the use of an umpire.26 Mr. Provazek then states he contacted
Plaintiffs’ counsel on November 5, 2018.27 Thus, according to Plaintiffs and Mr. Provazek, Mr.
Provazek did not inform Plaintiffs of the mistake until after Plaintiffs filed the stipulation of
dismissal on October 19, 2018.
Here, the Court concludes Plaintiffs proceeded with their stipulation of dismissal based
on mistaken information. Plaintiffs’ Rule 60(b)(1) request does not come after a “careless
mistake of counsel.” Rather, Plaintiffs reasonably depended on the parties’ appraisers and relied
on the appraisal award when filing the stipulation of dismissal. Moreover, unlike Yesh Music,
Plaintiffs did not seek a new action after filing the stipulation of dismissal. The record does not
indicate any intent by Plaintiffs to abuse the legal system or to employ tactics to seek a new
action. As such, the Court finds Plaintiffs’ actions involve mistake and excusable neglect. Thus,
the Court grants Plaintiffs’ request for relief under Rule 60(b)(1).
III.

Relief Under Rule 60(b)(6)

Plaintiffs implicitly request relief under Rule 60(b)(6) in its citations and explicitly
request the Court grant them relief “under Rule 60(b) . . . for any additional relief to which

23

Dkt. No. 29-1 p. 1, ¶ 3.
Id.
25
Id. ¶ 4.
26
Id.
27
Id.
24

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Plaintiffs are entitled.”28 Defendant argues “Plaintiffs [cannot] show such circumstances entitle
them to relief under Rule 60(b)(6) because there is no “manifest injustice” sufficient to establish
same.”29 The Court finds Plaintiffs are not entitled to relief under Rule 60(b)(6).
Rule 60(b)(1) and Rule 60(b)(6) are mutually exclusive. Rule 60(b)(6) is a “catch-all
provision, meant to encompass circumstances not covered by Rule 60(b)’s other enumerated
provisions.”30 If Rule 60(b)(1), or (b)(2)–(5), do not apply, Rule 60(b)(6) provides a party relief
of a final judgment, order, or proceeding “for any other reason that justifies relief.”31 A motion
under Rule 60(b)(6) must be made within a reasonable time.32 “Rule 60(b)(6) requires a showing
of ‘manifest injustice’” and purposes not to “reliev[e] a party from free, calculated, and
deliberate choices he has made.’”33 Only when “extraordinary circumstances are present” should
courts grant Rule 60(b)(6) motions.34
Plaintiffs cannot be entitled to relief under Rule 60(b)(6) because the Court has already
determined Plaintiffs are entitled to relief under Rule 60(b)(1). Thus, the Court denies Plaintiffs
relief under Rule 60(b)(6).
IV.

Conclusion

For these reasons, the Court finds Plaintiffs satisfy the Rule 60(b)(1) requirements.35 As
such, the Court GRANTS Plaintiffs’ motion36 to vacate and reinstate. The Court ORDERS the
parties to apprise the Court by Friday, February 1, 2019, of whether the appraisal process will
be reinstated.

28

Dkt. No. 29 p. 3, ¶ 7.
Dkt. No. 30 p. 4, ¶ 13.
30
Rayford, 740 F. App’x at 437 (quoting Hess v. Cockrell, 281 F.3d 212, 216 (5th Cir. 2002)).
31
Fed. R. Civ. P. 60(b)(6).
32
Fed. R. Civ. P. 60(c)(1).
33
Yesh Music, 727 F.3d at 363; Edward H. Bohlin Co., Inc., 6 F.3d at 357.
34
Rayford, 740 F. App’x at 437 (quoting Hess, 281 F.3d at 216).
35
See Fed. R. Civ. P. 60(b)(1), (6); 60(c)(1).
36
Dkt. No. 29.
29

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IT IS SO ORDERED.
DONE at McAllen, Texas, this 19th day of December, 2018.
___________________________________
Micaela Alvarez
United States District Judge

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