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CAUSE NO. 300620
IMERI ENTERPRISE INC. d/b/a LA IN THE DISTRICT COURT
QUINTA INNER SUITES,
PLAINTIFF,
VS. FORT BEND COUNTY, TEXAS
SAFEPOINT INSURANCE
COMPANY,
DEFENDANT. JUDICIAL DISTRICT
PLAINTIFF REPLY IN SUPPORT OF MOTION TO LIFT ABATEMENT
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff Imeri Enterprise Inc. d/b/a LA Quinta Inner Suites (“Plaintiff”) file this Reply in
Support of otion to Lift Abatement and would respectfully show ourt as follows:
I. OBJECTIONS
On September 7, 2023, Defendant filed its Combined Response to Plaintiff’s Motion to Lift
Abatement, and Motions to Compel, for Sanctions, and Motion to Disqualify Counsel. Because none
Defendant’s motions have been set to be heard, and out of an abundance of caution, Plaintiff
objects to both the presentation and consideration of these motions at the September 11, 2023
hearing. Additionally, Defense counsel has not conferred with Plaintiff’s counsel regarding these
motions, as evidenced by the absence of a certificate of conference. Finally, because Defendant has
not specified under which authority sanctions are being sought, it remains wholly unclear if Defendant
has complied with applicable procedural and due process requirements See In re N.R.C., 94 S.W.3d
799, 807 (Tex. App. Houston [14th Dist.] , pet denied (noting that the motion for sanctions
Plaintiff’s Motion to Lift Abatement is scheduled to be heard via oral argument on September 11, 2023 at
10:00 AM with an allotted time of 30 minutes.
“did not specify a rule or statute upon which the request for sanctions was based” and identifying
multiple bases for sanctions, including Tex. R. Civ. P. 13 & 215, Tex. Civ. Prac. & Rem. Code § 10.001
et seq., and a court’s inherent authority). Accordingly, Plaintiff reserves the right to respond in full to
Defendant’s Motions to Compel, for Sanctions, and Motion to Disqualify Counsel.
II. ARGUMENTS & AUTHORITIES
Defendant asserts four reasons for the alleged prematurity of Plaintiff’s Motion to Lift
Abatement, all of which lack merit. Defendant’s first argument is the examination under oath
(“EUO”) of Mark Earle has not been signed, and Defendant' second argument is, somewhat ironically,
that the very same EUO is incomplete, despite Defense counsel voluntarily suspending the EUO with
no subsequent attempts to resume and no subsequent requests for additional documents. Defendant’s
third argument is appraisal is still warranted because of a so-called “prospective appraisal” which has
yet to be invoked by either party. Defendant’s fourth argument, which it contends is “perhaps most
relevant” is that “abatement is within the Court’s broad discretion.”
“Even without meeting all of the conditions of an EUO, an insured may substantially comply
with the requirement, and the insurer may waive further compliance.” Lidawi v. Progressive Cnty. Mut.
Ins. Co., 112 S.W.3d 725, 734 (Tex. App.—Houston [14th Dist. 2003, no pet.). Relatedly, courts have
held that an insurer’s inaction regarding alleged defects with EUO compliance can result in waiver. See
Perrotta v. Farmers Ins. Exch., 47 S.W.3d 569, 574 (Tex. App.—Houston [1st] 2001. no pet.) (citing
Century Ins. Co. v. Hogan, 135 S.W.2d 224 (Tex. Civ. App.—Austin 1939, no writ) (“because the insurer
had not ‘directed attention’ to the insured's failure to sign the EUO, further compliance was waived.”).
Here, the EUO took place on August 1, 2023, and Defendant maintains that because Plaintiff
provided requested documents “eight (8) minutes into the EUO, Defendant suspended the EUO, to
be continued upon review of what Plaintiff’s counsel sent.” However, this position is without merit,
as the subject insurance policy includes no requirement for Mark Earle to produce documents. See
2
Exhibit A to Defendant’s Combined Original Answer, Verified Denial, and Motions for Protection,
Abatement, and to Compel at CP 00 10 10 12 & SIC TX CP AE1 02 20 (“Throughout this policy, the
words ‘you’ and ‘your’ refer to the Named Insured shown in the Declarations” and “[a]s often as may
be reasonably required, permit us to inspect the property proving the loss or damage and examine your
books and records”) (emphasis added). Also, as reflected in the EUO transcript, although Defense
counsel’s stated intention was to “suspend for a couple of hours while I review what was sent” there
was no subsequent attempt to resume the EUO. See Defendants Exhibit G at 17:20-21. About a week
after the EUO, Plaintiff’s counsel emailed defense counsel to confer regarding the abatement. Defense
counsel’s reply emailed merely stated, “[o]pposed.” See Exhibit A. Plaintiff sent a follow-up email
asking for clarification, to which Defense counsel never responded. See Exhibit A. Accordingly,
Plaintiff filed its Motion to Lift Abatement on August 15, 2023. Thereafter, on September 7, 2023—
37 days after the EUO—Defendant filed its Combined Response to Plaintiff’s Motion to Lift
Abatement, and Motions to Compel, for Sanctions, and Motion to Disqualify Counsel. Notably, this
was Defendant’s first attempt since August 1, 2023 to resume the EUO, request additional documents,
or follow-up on Mark Earle’s signature. Therefore, Defendant waived any further compliance by
Mark Earle.
Defendant’s third argument, that a so-called “prospective appraisal” justifies continued
abatement, is without merit. More specifically, because neither party has invoked appraisal, the issue
is not ripe for consideration and is not properly before the Court.
Defendant’s fourth argument, that abatement is within the Court’s broad discretion, is not
actually an argument and is instead a statement of law. Nevertheless, because Mark Earle substantially
complied with the EUO, and because Defendant has since waived any alleged defects, the Court
should exercise its broad discretion and lift the abatement.
[signature on next page]
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Respectfully submitted,
ZAR LAW FIRM
/s/ Matthew Zarghouni
Matthew Zarghouni
State Bar No. 24086085
3900 Essex Ln, Suite 1011
Houston, Texas 77027
Office: (713) 333-5533
Fax: (281) 888-3150
Matt@zar-law.com
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF SERVICE
I certify that on September 8, 2023, a true and correct copy of this document was served on
all counsel of record as follows:
Via E-Service
Ronald L. Hornback
Matthew D. Monson
THE MONSON LAW FIRM, LLC
900 Rockmead Drive, Suite 141
Kingwood, Texas 77339
Ronald@monsonfirm.com
Matthew@monsonfirm.com
ATTORNEYS FOR DEFENDANT
/s/ Matthew Zarghouni
Matthew Zarghouni
4
Exhibit A
Preview
CAUSE NO. 300620 IMERI ENTERPRISE INC. d/b/a LA IN THE DISTRICT COURT QUINTA INNER SUITES, PLAINTIFF, VS. FORT BEND COUNTY, TEXAS SAFEPOINT INSURANCE COMPANY, DEFENDANT. JUDICIAL DISTRICT PLAINTIFF REPLY IN SUPPORT OF MOTION TO LIFT ABATEMENT TO THE HONORABLE JUDGE OF SAID COURT: Plaintiff Imeri Enterprise Inc. d/b/a LA Quinta Inner Suites (“Plaintiff”) file this Reply in Support of otion to Lift Abatement and would respectfully show ourt as follows: I. OBJECTIONS On September 7, 2023, Defendant filed its Combined Response to Plaintiff’s Motion to Lift Abatement, and Motions to Compel, for Sanctions, and Motion to Disqualify Counsel. Because none Defendant’s motions have been set to be heard, and out of an abundance of caution, Plaintiff objects to both the presentation and consideration of these motions at the September 11, 2023 hearing. Additionally, Defense counsel has not conferred with Plaintiff’s counsel regarding these motions, as evidenced by the absence of a certificate of conference. Finally, because Defendant has not specified under which authority sanctions are being sought, it remains wholly unclear if Defendant has complied with applicable procedural and due process requirements See In re N.R.C., 94 S.W.3d 799, 807 (Tex. App. Houston [14th Dist.] , pet denied (noting that the motion for sanctions Plaintiff’s Motion to Lift Abatement is scheduled to be heard via oral argument on September 11, 2023 at 10:00 AM with an allotted time of 30 minutes. “did not specify a rule or statute upon which the request for sanctions was based” and identifying multiple bases for sanctions, including Tex. R. Civ. P. 13 & 215, Tex. Civ. Prac. & Rem. Code § 10.001 et seq., and a court’s inherent authority). Accordingly, Plaintiff reserves the right to respond in full to Defendant’s Motions to Compel, for Sanctions, and Motion to Disqualify Counsel. II. ARGUMENTS & AUTHORITIES Defendant asserts four reasons for the alleged prematurity of Plaintiff’s Motion to Lift Abatement, all of which lack merit. Defendant’s first argument is the examination under oath (“EUO”) of Mark Earle has not been signed, and Defendant' second argument is, somewhat ironically, that the very same EUO is incomplete, despite Defense counsel voluntarily suspending the EUO with no subsequent attempts to resume and no subsequent requests for additional documents. Defendant’s third argument is appraisal is still warranted because of a so-called “prospective appraisal” which has yet to be invoked by either party. Defendant’s fourth argument, which it contends is “perhaps most relevant” is that “abatement is within the Court’s broad discretion.” “Even without meeting all of the conditions of an EUO, an insured may substantially comply with the requirement, and the insurer may waive further compliance.” Lidawi v. Progressive Cnty. Mut. Ins. Co., 112 S.W.3d 725, 734 (Tex. App.—Houston [14th Dist. 2003, no pet.). Relatedly, courts have held that an insurer’s inaction regarding alleged defects with EUO compliance can result in waiver. See Perrotta v. Farmers Ins. Exch., 47 S.W.3d 569, 574 (Tex. App.—Houston [1st] 2001. no pet.) (citing Century Ins. Co. v. Hogan, 135 S.W.2d 224 (Tex. Civ. App.—Austin 1939, no writ) (“because the insurer had not ‘directed attention’ to the insured's failure to sign the EUO, further compliance was waived.”). Here, the EUO took place on August 1, 2023, and Defendant maintains that because Plaintiff provided requested documents “eight (8) minutes into the EUO, Defendant suspended the EUO, to be continued upon review of what Plaintiff’s counsel sent.” However, this position is without merit, as the subject insurance policy includes no requirement for Mark Earle to produce documents. See 2 Exhibit A to Defendant’s Combined Original Answer, Verified Denial, and Motions for Protection, Abatement, and to Compel at CP 00 10 10 12 & SIC TX CP AE1 02 20 (“Throughout this policy, the words ‘you’ and ‘your’ refer to the Named Insured shown in the Declarations” and “[a]s often as may be reasonably required, permit us to inspect the property proving the loss or damage and examine your books and records”) (emphasis added). Also, as reflected in the EUO transcript, although Defense counsel’s stated intention was to “suspend for a couple of hours while I review what was sent” there was no subsequent attempt to resume the EUO. See Defendants Exhibit G at 17:20-21. About a week after the EUO, Plaintiff’s counsel emailed defense counsel to confer regarding the abatement. Defense counsel’s reply emailed merely stated, “[o]pposed.” See Exhibit A. Plaintiff sent a follow-up email asking for clarification, to which Defense counsel never responded. See Exhibit A. Accordingly, Plaintiff filed its Motion to Lift Abatement on August 15, 2023. Thereafter, on September 7, 2023— 37 days after the EUO—Defendant filed its Combined Response to Plaintiff’s Motion to Lift Abatement, and Motions to Compel, for Sanctions, and Motion to Disqualify Counsel. Notably, this was Defendant’s first attempt since August 1, 2023 to resume the EUO, request additional documents, or follow-up on Mark Earle’s signature. Therefore, Defendant waived any further compliance by Mark Earle. Defendant’s third argument, that a so-called “prospective appraisal” justifies continued abatement, is without merit. More specifically, because neither party has invoked appraisal, the issue is not ripe for consideration and is not properly before the Court. Defendant’s fourth argument, that abatement is within the Court’s broad discretion, is not actually an argument and is instead a statement of law. Nevertheless, because Mark Earle substantially complied with the EUO, and because Defendant has since waived any alleged defects, the Court should exercise its broad discretion and lift the abatement. [signature on next page] 3 Respectfully submitted, ZAR LAW FIRM /s/ Matthew Zarghouni Matthew Zarghouni State Bar No. 24086085 3900 Essex Ln, Suite 1011 Houston, Texas 77027 Office: (713) 333-5533 Fax: (281) 888-3150 Matt@zar-law.com ATTORNEY FOR PLAINTIFF CERTIFICATE OF SERVICE I certify that on September 8, 2023, a true and correct copy of this document was served on all counsel of record as follows: Via E-Service Ronald L. Hornback Matthew D. Monson THE MONSON LAW FIRM, LLC 900 Rockmead Drive, Suite 141 Kingwood, Texas 77339 Ronald@monsonfirm.com Matthew@monsonfirm.com ATTORNEYS FOR DEFENDANT /s/ Matthew Zarghouni Matthew Zarghouni 4 Exhibit A