linked property versus Lexington Insurance Company. All right, is the appellant ready to proceed? Pellee? All right, you may proceed. May I please the court? My name is Todd Lipscomb and I represent Nordling property LLC. Nordling was hit by Hurricane Ike. It was damaged by Hurricane Ike. Carers have paid approximately $400,000 in damages to that property. When there's disasters like this, the first line to rebuilding is property insurance. It doesn't concern itself with liability. It's designed to get people back on their feet as soon as possible. The Texas legislature has recognized that and imposed a statute that in many ways, not only the amount of payment is important, but the timeliness of it. Next, the Texas prompt payment acclaims acts. It adopts a procedure for both what must be done statutorily to adjust a claim as time periods for payment acclaim. The maximum of 75 days. In this case, Nordling did not receive his payment for over 15 months. We're seeking the 18% required interest for that time period. You're talking about the 70%. So you're saying the $75,000 payment was on time? That's your reduced argument? No, you're on it. There is an initial $75,000 payment made by Lexington shortly after the claim. I think it was the 11th claim that was paid. 15 months later, the excess carrier max specially paid $245,000, and then another $95,000 approximately was paid by the third level of insurance
. And that gets us to the key issue. We're not seeking the interest on the $75,000 payment. We're seeking the delay on the payment of the $245,000 in the initial $95,000 that was caused by Lexington, even though the excess carriers paid it. So you're saying Lexington pays for the untimeliness of max specialty? It's not their untimeliness. Under Texas law, an excess carrier does not have a burden to pay the claim until the underlying policy limits are fully exhausted. Lexington did not claim or did not give notice that the underlying policy limits were exhausted until January 2010, which is approximately 15 months. So that time period from when the claim is turned in until they then turn it over to the excess carrier, that's the time period we're seeking the money for. And the reason for that is a very clear policy reason, and that the statute is designed to encourage the payment of claims. If this was only one insured, not a group policy with multiple first party insured people, there's no dispute they'd owe the claim. We didn't see the $25 million in policy limits. They would owe it to the 15 months. There's no dispute about it. The difference here is that because they took their time and paying normally, that $25 million balance got exhausted. And so what they're looking for is we don't owe this money because we took so long paying other people, someone else had to pay the claim for us. There's no defense to liability. They paid it. And especially paid the $241 on the property. The other $95 was paid by the third level carrier, and we're not complaining about the time limit of what they did. But what we're complaining about is that a company like Lexington shouldn't be rewarded by picking and choosing which people it's timely on and able to avoid the penalties by refusing to pay people who turn to claim in first
. Your position is you've been paid in full, and every payment you got was timely from the person who paid it to you. From the person who paid it. But you think Lexington still should be liable for the untimeliness of the excess carriers? What's your best authority for that? There is an abolition of Texas law. There is not. But Texas law, the statute itself, would seem, say, Lexington, there is no claim pending against Lexington. You call it in a brief an initial and an advance payment, but I didn't see in the record any support for that. Look, that was your claim and they paid it. There is no dispute that they advance $75,000. We turned an estimate of $1.2 million. They said we don't have enough information to decide that yet. We're still adjusting it and they adjust it for 15 months. And what I want to clarify here is, Mac specialty, the second liability attached to their layer caught on the claim, got it paid. When Mac specialty exhausted its policy limits, the third layer got on the claim, got it paid. Lexington caused the delay in that exhaustion, that $25 million. There is nothing that says they couldn't have paid, rather than $75,000, the full $400. They chose not to. And then as that time continued to tick, as they realized they had blown those deadlines, they simply handed it off to somebody else. Well, if you don't like that situation, you didn't have to buy that kind of insurance to begin with
. In terms of a group policy, your honor? Absolutely. That is true. And there is no case. Your client made the decision to buy that kind of insurance, and so you might say he got what he paid for. There is nothing in the statute that says that because it is a group policy, those deadlines don't apply to you. Well, what happens if he goes ahead and they pay the $400,000 or whatever the total amount of the claim is here? And then there is a group of other insurance companies who say, aha, I mean other insureds who say, oh look what happened here. There is no problem here of a situation where there wasn't enough money to go around. The claims got paid. It was a question of how quickly it got exhausted. We were the 11th claim that got turned in. That is why we got that initial advance. If they wanted to exhaust that $25 million because it was so obvious that there was a large number of volume of claims, the solution is simple. It turned to the $25 million up front. And then it is max specialty's problem, which is exactly what happened 15 months later. And that is all we are seeking here. They had 75 days to do it. Instead they took 15 months. Whether it is a group policy or an individual policy, that statute doesn't get abrogated by it. That statute clearly applies
. Even if it was a group policy, yet Nordling was the only complex damage. And they took this 15 months to do it and make the final payment, they know it. The only difference here is a choose to pay others first during that exhaustion process. And it is not max specialty's problem. It is not the third layers problem. It is solely on Lexington and its adjusters. And what the court says, the trial court is very clear on this. It says without a breach of contract claim, it cannot exist. That is wrong under Texas law. The Lynn case out in 2013 goes directly against that out of the San Antonio Court of Peals inside in our brief. In that case it was a hail claim. You know I had fire, I came forward, paid $2 million on the claim. There were disputes about the remaining balance. The court came back and said, regardless of what happens with that remaining balance, you were not timely on that $2 or $3 million. It does not matter whether you breach or not. You breach the statute. You owed the $2 to $3 million and awarded the 18% interest in fees based upon that. And for that reason, the summary and judgment order basing it upon a breach of contract is flawed in and of itself. The second reason is flawed is expressing the order he says that Lexington acted in good faith
. That is a little difficult because he denied all discovery in the case. All discovery refused to enter a scheduling order, although he sat on the summary judgment for over two years. Being a chance to discover on it, but not as important because the cater case, also out of the San Antonio Court of Peals, expressly holds good faith is never a defense to the statute. Hagen-Boffen 5th Circuit Case from the 1990s says it's a strict liability statute. There is no good faith defense. Those are irrelevant issues that the court based its decision in summary judgment upon. One that has to have a breach of contract falls. Two that they acted in good faith. Well, one, there's no evidence of it, but two, even if true, it is irrelevant because these deadlines are mandated by the state of Texas. It's not a bad faith claim. It's simply a claim for interest and attorney's fees. There's a second issue dealing with jurisdiction. I don't want you to move on to that or continue to address that. Where's the get off that? It was February of 2013, the status report from you indicated no outstanding claims against Lexington. Is that correct? No, you're on a close. There is a status report from our firm that was required to be issued by the court. Judge Hughes is calling us over every few months saying if you don't attend, your case will be dismissed. And you have to file a current status for it. He says, what pending claims are before the court? At that point, the adjusters have already been dismissed
. Macspecialty had already paid off on the excess layer and the third layer of it already been paid. At that point, the remaining claims in the case after those dismissals and the payments were the interest and attorney's fees claims pending against Lexington. Was I clear on that or? Yeah, that's fine. Go ahead. Do you want to get to the jurisdictional question? Only if the court wants me to. I can do it either way. Well, if you choose, but are you pursuing it or not? Yes, we are. Your Honor. And jurisdictionally, it's all based on fraudulent and jointer. There's a host of law school exam issues here, but I'm going to cut through them pretty quick because you all are more intimate with this law than I am. At the time they removed it, it was based solely upon the pleading. Unlike griggs in the cases they cite to, even their own motion is not specific enough because what we dress is the reason there's delays, the reason there are problems is that the adjusters hired a biased investigating report. Based upon Nikola versus state law farm has a violation of the Texas insurance code. Garrison, all those cases, states of viable against independent adjuster. Pleading are specific enough to meet that ground. Subsequent to that, though, this case got consolidated with other cases. And so their fallback provision, realizing the pleading problem, is that there were affidavits submitted in other cases prior to consolidation that provide some evidence to pierce the pleading. All sorts of host of due process concerns in terms of affidavits referring to other cases that somehow then get consolidated with us as being a basis for the dismissal of our claims. Furthermore, those affidavits are inadequate because they don't address our claims at all
. They go on and say at the Ridge Mar or whatever alternative apartment complexes are, these are what my duties are. But there are no evidence as to what they did at the Nordling property. So then they come back and say, we got a third option now. One's not good enough, two's not good enough. We filed a 12b6 motion to dismiss or in the alternative motion for summary judgment. And it's attached to that we attached two affidavits that now address the Nordling property. Judge Green and some of you judgment on that before our answer date. He said, I'm dismissing under 12b6, but we didn't even get a chance to answer which was filed the next day. Timer. If he's considering the evidence and those affidavits were entitled as a matter of laws, a chance to respond. If he's not, then we're back to just the issue of whether that was a pleading deficiency and we passed that test. But even those affidavits on their face, if they could serve as a basis for summary judgment, don't address that one specific issue. And that one specific issue is, did these adjusters hire the engineer who came out with the $100,000 estimate, which in fact is the basis for why it all got delayed? Were they biased? Did they know that he would give them a low-ball number so they could give them a $25,000 payment? Or that allegation as to the non-diverse defendants is exclusively in the third amendment against them. It doesn't also allege Lexington Mack specialties. It does do Lexington and there's a reason why for that. It's a catch 22 for plaintiffs whenever you have a third party administrator of this sort in the opinion of the gesture. If we claim out there and say that Lexington did it because they have the authority ultimately that responsible for it, they come back and say, but we didn't have anybody on the ground. We didn't hire this engineer that you say is biased. That was given to us by the independent adjuster
. Conversely, if we go out there and say the independent adjuster did it, they come back and say, well, guess what? We didn't have any authority to do that. Well, we didn't have authority to decide the claim. So we didn't think hired the biased person, the authority was still back in New York with Lexington. And so it's somewhat of a catch 22 that if you don't plead them specifically, especially before you have any discup free in the case, they keep moving the ball around. Kind of like to see on the street and you've got to guess which one is the right one and if they pull it up, you lose. And so when you allege these things, and these are lessons learned hard way sometimes, you have to be specific. We know that we have to name Lexington. We know that we have to name the individual adjuster as well as his employer, Cunningham Lindsay. And the allegation is that because we don't have their internal documents, we know who was working on the file, these people in some sort of consortium made the decision to hire the biased engineer. The person that came out there and gave them the low ball estimate that allowed them to pay only $75,000 and delay our claim for over 15 months. Which is to say you had no claims exclusively against the adjusters. At this point, I'd be hard to answer that question only for this reason. If Lexington were to step up to the plate and say we were solely responsible for it and the discovering the email showed they picked the engineer, we'd be in a much more difficult situation. I don't expect that to be the case because they didn't say that in their affidavits. In fact, they didn't address the issue at all. It's their burden to establish that for removal jurisdiction. They have a heavy burden in doing so unless conclusively establish it. I think if it was that clear, or their adjuster did not hire this person, that was the decision made in House of Lexington, we would have seen that in at least some of the evidence they've submitted. They have not and we've never been allowed to discover any additional evidence
. So that's why I'd be hesitant and cert definitively at this time. If there are no further questions, I'll see you the rest of my time. Thank you. Thank you. May I please the court? The district court in this case correctly granted a summary judgment for Lexington on Nordlings claim under Chapter 542 of the Texas Insurance Code. As we've already discussed in the briefs, Lexington exhausted the full $25 million of its limits under this group policy paying claims to over 100 different insurges as a result of property damages, a result of Hurricane Ike. As the trial court correctly held, there was never any evidence that Nordling had a valid claim at the time that Lexington exhausted the policy. Within three months of Hurricane Ike, Lexington began investigating the claim and made a $75,000 advance payment to Nordling. But there was no evidence and Nordling never put forth any evidence in the summary judgment record or otherwise to suggest that before the policy exhausted, they had presented a valid proof of loss put forth a claim for the amount that they now claim that they were entitled to and the amount that they were fully paid by their excess insurges. The only evidence and they didn't even put this forth as summary judgment evidence, but the only evidence that was ever even discussed in the trial court below was a claim that Nordling made at the first hearing in 2011, which they said that there was a spreadsheet that they claimed was prepared by Lexington in May of 2009 before exhaustion that they claimed would have established that Lexington knew there was a claim for these additional amounts. Well, it turned out in a joint status report to the court, they reported the fact that that spreadsheet was actually prepared by the excess insurer, not by Lexington or by any of Lexington's adjusters. And therefore that spreadsheet was no evidence of the fact that there existed a valid claim at the time of policy exhaustion. In the absence of a valid claim, there can be no liability under chapter 542. There is no evidence in this record to suggest that anybody with Lexington knew or should have known that there was a claim in existence before the policy exhausted. In the absence of a valid claim at the time the exhaustion takes away any potential claims because of course they no longer have any money to pay future claims. So that extinguishes all chapter 542 liabilities. So under the facts of this case and the record before the district court, there's no question that the summary judgment was properly granted. And that's even under Linde, the case he's principally relying on? It Linde wasn't a group policy, right? That is correct. Linde was a case in which the insurer specifically admitted that it owed the limits of its policy as to an individual insurer
. So it doesn't apply to our case at all because you have a case where the insurer, I mean the insurer expressly recognized and admitted that it owed the money, but it was late in paying the money. So that case, which I'll note is not a case out of the Texas Supreme Court, it's not one of the intermediate courts in Texas, does not apply here to the facts of this case. I want to briefly turn to the jurisdiction argument because their argument in their brief is that we don't even get to the substance of the summary judgment because of the jurisdictional defect that they claim exists. But there are at least three independent reasons why this court can affirm the district court's finding of jurisdiction in this case. Number one is the fact that, and I want to preface this by saying there's no dispute that Nordling and Lexington, the two parties to the summary judgment into the final judgment of the court are diverse. Nordling did not, and it's notice of appeal, appeal directly from the dismissal of the two allegedly non-diverse defendants, Cunningham Lindsay and Paul Odom. Notice of appeal expressly appeal just the summary judgment order as to Lexington. So under rule three, that divest this court of jurisdiction, of a pellet jurisdiction, or with respect to any complaints about the dismissal of Cunningham Lindsay and Odom, they have no appeal. And so therefore the judgment is diverse and diversity, complete diversity exists among the parties to the final judgment. The twist being one that we were going to look so a sponte at our own jurisdiction, whether they made an objection and noticed it or not. Well, again though the issue is the fact that the parties that would, again, there was diversity. The judgment that was entered involved diverse parties. At the time of its entry. At the time of its entry, that's correct. And so the only question is, well, was the, so they would have had to have appealed the dismissal of the non-diverse parties because they didn't appeal the decision. And so the dismissal of Cunningham Lindsay and Odom, that takes away any concerns about the jurisdiction of the court. The second thing that issue is not before us and we can't examine it even in pursuit of a question about whether or not we have jurisdiction. Is that what you're saying? I believe that's correct. The upshot of it is that because they can't appeal the dismissal of Cunningham Lindsay and Odom, then the issue is, becomes, was the final judgment entered by the court? Was there jurisdiction to enter that judgment? And is the answer is yes because they have waived any appeal as to the dismissal of the non-diverse parties. Do you have a case that applies waiver in that context? I'm sorry. Do you have a case that applies waiver in that context? I don't think I have a specific case that deals with that. But I'll mention the two other independent grounds on which this court can affirm with respect to jurisdiction. Number one is that we do believe that the court was correct in denying Nordling's motion to remand because the allegations as the court has pointed out were general as to Lexington Cunningham Lindsay and Odom. There are no specific facts that were alleged as to Cunningham Lindsay and Odom, the non-diverse defendants. In fact, there are very conclusion allegations that would not survive a 12-B6 type inquiry, which is what courts are required to do in reviewing whether or not a motion to remand was in fact properly denied. And so under the facts of this case, the motion to remand that the district court denied properly because they don't have any just looking at the petition itself and as council pointed out the record in the case. And remember, this was a consolidating case with several different cases. There were previously affidavits that were filed on behalf of Mr. Odom and on behalf of Cunningham Lindsay because this case, this issue had come up before in the exact same context claims under the same policy claims in which allegations were made against Mr. Odom and against Cunningham Lindsay jointly with Lexington with respect to claims handling issues. And those affidavits had already been presented to the court. And so the court did not use its discretion in looking at those affidavits if in fact that's what the court did. So did or didn't the district court in the European Union pierce the pleadings and rely on those? I believe whether or not the court did is irrelevant because I think even under the bear pleadings, they don't get there under rule 12-B6. And so therefore it would have been proper to deny the motion to remand. If in fact the court did pierce the pleadings to look at those affidavits, that would have also, that would have been within the court's discretion to do that. And that would have also supported the fact that there are no valid claims against Cunningham Lindsay and Odom that would have survived a rule 12-B6 analysis. The third ground on which this court could affirm with respect to jurisdiction is the well-established exception that the US Supreme Court recognized in Caterpillar versus Lewis, which is where NORDLINGS post-removal admission that the only valid claims it had were those under chapter 542. They dropped every claim that they had against Lexington under chapter 541, the handling of claims, which of course those are the exact same claims that they were bringing against Cunningham Lindsay and Odom
. Do you have a case that applies waiver in that context? I'm sorry. Do you have a case that applies waiver in that context? I don't think I have a specific case that deals with that. But I'll mention the two other independent grounds on which this court can affirm with respect to jurisdiction. Number one is that we do believe that the court was correct in denying Nordling's motion to remand because the allegations as the court has pointed out were general as to Lexington Cunningham Lindsay and Odom. There are no specific facts that were alleged as to Cunningham Lindsay and Odom, the non-diverse defendants. In fact, there are very conclusion allegations that would not survive a 12-B6 type inquiry, which is what courts are required to do in reviewing whether or not a motion to remand was in fact properly denied. And so under the facts of this case, the motion to remand that the district court denied properly because they don't have any just looking at the petition itself and as council pointed out the record in the case. And remember, this was a consolidating case with several different cases. There were previously affidavits that were filed on behalf of Mr. Odom and on behalf of Cunningham Lindsay because this case, this issue had come up before in the exact same context claims under the same policy claims in which allegations were made against Mr. Odom and against Cunningham Lindsay jointly with Lexington with respect to claims handling issues. And those affidavits had already been presented to the court. And so the court did not use its discretion in looking at those affidavits if in fact that's what the court did. So did or didn't the district court in the European Union pierce the pleadings and rely on those? I believe whether or not the court did is irrelevant because I think even under the bear pleadings, they don't get there under rule 12-B6. And so therefore it would have been proper to deny the motion to remand. If in fact the court did pierce the pleadings to look at those affidavits, that would have also, that would have been within the court's discretion to do that. And that would have also supported the fact that there are no valid claims against Cunningham Lindsay and Odom that would have survived a rule 12-B6 analysis. The third ground on which this court could affirm with respect to jurisdiction is the well-established exception that the US Supreme Court recognized in Caterpillar versus Lewis, which is where NORDLINGS post-removal admission that the only valid claims it had were those under chapter 542. They dropped every claim that they had against Lexington under chapter 541, the handling of claims, which of course those are the exact same claims that they were bringing against Cunningham Lindsay and Odom. So by conceding that they didn't have any claims under 541, even though Odom and Cunningham Lindsay had already been dismissed from the case, those claims they were conceding were not valid claims to be brought even against Cunningham Lindsay and Odom. Because those, those were the exact same claims that they were bringing against Lexington. And so therefore under under Caterpillar and under the analysis that the court has followed, the only legitimate claims that were left were those under chapter 542, which could only have been brought against Lexington under chapter 542. So that remedies any alleged defect that there may have been with respect to diversity jurisdiction. I do want to just bring up one other point and that has to do with the issue about discovery in this case. Plaintiffs make a big deal alleging that the court refused to enter a scheduling order. The fact of the matter is this case, the motion for summary judgment was initially heard in April 2011. At that time, Nordling filed a motion for continuance asking that the court defer so they could conduct discovery or so that they could have additional time to respond. Well, the court didn't rule on the motion until July of 2013. So there's a period of over two years that Nordling had in which they could have first off, they could have presented their own evidence. If they had, as they now claim evidence that there was some misadjustment, that there were some misadjustment by Lexington or by Cunningham Lindsey with respect to the claim, if they had additional evidence to show just the fact that they had submitted a proof of loss to Lexington at some point before exhaustion. They had that evidence, they didn't need to get discovery from Lexington, that evidence should have been available to them. The other point is that at no time did they ever ask the court to enter a scheduling order in terms of filing a motion for a scheduling order, never submitted any requests formally or informally to Lexington for discovery in this matter. So for them to hang their hat on the district court's alleged refusal to enter a scheduling order to prevent them from engaging in discovery, there's no discovery that they had ever requested or pointed out to the court that they needed that would have changed the analysis with respect to the summary judgment. There are no further questions. I will yield the remainder of my time. Thank you. Rebuttal. Oh, I'm sorry
. So by conceding that they didn't have any claims under 541, even though Odom and Cunningham Lindsay had already been dismissed from the case, those claims they were conceding were not valid claims to be brought even against Cunningham Lindsay and Odom. Because those, those were the exact same claims that they were bringing against Lexington. And so therefore under under Caterpillar and under the analysis that the court has followed, the only legitimate claims that were left were those under chapter 542, which could only have been brought against Lexington under chapter 542. So that remedies any alleged defect that there may have been with respect to diversity jurisdiction. I do want to just bring up one other point and that has to do with the issue about discovery in this case. Plaintiffs make a big deal alleging that the court refused to enter a scheduling order. The fact of the matter is this case, the motion for summary judgment was initially heard in April 2011. At that time, Nordling filed a motion for continuance asking that the court defer so they could conduct discovery or so that they could have additional time to respond. Well, the court didn't rule on the motion until July of 2013. So there's a period of over two years that Nordling had in which they could have first off, they could have presented their own evidence. If they had, as they now claim evidence that there was some misadjustment, that there were some misadjustment by Lexington or by Cunningham Lindsey with respect to the claim, if they had additional evidence to show just the fact that they had submitted a proof of loss to Lexington at some point before exhaustion. They had that evidence, they didn't need to get discovery from Lexington, that evidence should have been available to them. The other point is that at no time did they ever ask the court to enter a scheduling order in terms of filing a motion for a scheduling order, never submitted any requests formally or informally to Lexington for discovery in this matter. So for them to hang their hat on the district court's alleged refusal to enter a scheduling order to prevent them from engaging in discovery, there's no discovery that they had ever requested or pointed out to the court that they needed that would have changed the analysis with respect to the summary judgment. There are no further questions. I will yield the remainder of my time. Thank you. Rebuttal. Oh, I'm sorry. Oh, yeah. May it please the court. My name is Sean Higgins. I am appearing on behalf of Cunningham, the Pally's Cunningham Lindsey, US Inc. and Paul Oda. The position of the procedural position of Cunningham, Lindsey and Oda is different from the procedural position of Lexington. That is because Nordling failed to invoke the court's subject, this court's appellate jurisdiction over the order dismissing Cunningham, Lindsey and Oda. The notice of appeal filed by Nordling in this case. Makes no reference to the previous order dismissing Cunningham, Lindsey and Paul Oda. That order was entered two years earlier before the summary judgment in this case and it makes no reference to that. There is a Supreme Court decision that speaks to a similar decision. It is the Torres decision that is cited in our brief. In that case, there is a plaintiff who is not a multiple plaintiff case and a plaintiff was not named in the notice of appeal. The Supreme Court said the requirements of rule three are jurisdictional. The plaintiff was not named in the appeal. The question is not prejudiced. The question is jurisdiction. And as a result, the Court of Appeals did not have jurisdiction. And there is a decision by this court, the Capitol Parks case
. Oh, yeah. May it please the court. My name is Sean Higgins. I am appearing on behalf of Cunningham, the Pally's Cunningham Lindsey, US Inc. and Paul Oda. The position of the procedural position of Cunningham, Lindsey and Oda is different from the procedural position of Lexington. That is because Nordling failed to invoke the court's subject, this court's appellate jurisdiction over the order dismissing Cunningham, Lindsey and Oda. The notice of appeal filed by Nordling in this case. Makes no reference to the previous order dismissing Cunningham, Lindsey and Paul Oda. That order was entered two years earlier before the summary judgment in this case and it makes no reference to that. There is a Supreme Court decision that speaks to a similar decision. It is the Torres decision that is cited in our brief. In that case, there is a plaintiff who is not a multiple plaintiff case and a plaintiff was not named in the notice of appeal. The Supreme Court said the requirements of rule three are jurisdictional. The plaintiff was not named in the appeal. The question is not prejudiced. The question is jurisdiction. And as a result, the Court of Appeals did not have jurisdiction. And there is a decision by this court, the Capitol Parks case. And in that case, the appellants notice of appeal stated that they were appealing from the judgment. And the court said, well, that notice of appeal from the judgment does not encompass. Does not fairly encompass an appeal from an order denying a motion to amend. Now, there is a case that has been cited by the Nordling, it is the DesoTel case. And I believe that the issue in DesoTel is different from the issue of whether a pellet jurisdiction was established over the order of dismissal in this case. And DesoTel related to an order denying a motion to amend. The party appealed from the final judgment. The appellant appealed from the final judgment, but did not mention the order denying remand. And what the court said is that the final judgment and the order denying remand were intertwined because the final judgment was predicated on the district court's decision that it had jurisdiction. There is another case that is cited by the Nordling Trust Company of Louisiana from 1997. And this court held that service that the question of whether service was perfected was fairly encompassed in a notice appealing final judgment because the judgment was premised on the existence of personal jurisdiction on the completion of service and service had been objected to. In this case, the judgment that has been appealed and the judgment that was referenced, the only order referenced in the notice of appeal, is in no way predicated on the order of dismissal. If Nordling and Cunningham Lindsay had never been dismissed, that judgment could still be before the court. So we would submit that plan of some, Nordling has not established this court's appellant jurisdiction. I think there may be a question that the court has. The court may have a question, well, if we found that there was no subject matter jurisdiction that removal was improper, what would be the impact on the order dismissing Nordling and Cunningham? Would it become a nullity? Would it be a free for all or it could be where Nordling and Cunningham Lindsay could be sued in this case again in state court? And the answer is no. There is a line of cases beginning with the Supreme Court's decision in shoe coat drainage district versus Baxter State Bank that holds that if a court acts without subject matter jurisdiction. And the court's order, the federal court's order entered without subject matter jurisdiction is not appealed, that order is still binding. It does not become a free for all
. And in that case, the appellants notice of appeal stated that they were appealing from the judgment. And the court said, well, that notice of appeal from the judgment does not encompass. Does not fairly encompass an appeal from an order denying a motion to amend. Now, there is a case that has been cited by the Nordling, it is the DesoTel case. And I believe that the issue in DesoTel is different from the issue of whether a pellet jurisdiction was established over the order of dismissal in this case. And DesoTel related to an order denying a motion to amend. The party appealed from the final judgment. The appellant appealed from the final judgment, but did not mention the order denying remand. And what the court said is that the final judgment and the order denying remand were intertwined because the final judgment was predicated on the district court's decision that it had jurisdiction. There is another case that is cited by the Nordling Trust Company of Louisiana from 1997. And this court held that service that the question of whether service was perfected was fairly encompassed in a notice appealing final judgment because the judgment was premised on the existence of personal jurisdiction on the completion of service and service had been objected to. In this case, the judgment that has been appealed and the judgment that was referenced, the only order referenced in the notice of appeal, is in no way predicated on the order of dismissal. If Nordling and Cunningham Lindsay had never been dismissed, that judgment could still be before the court. So we would submit that plan of some, Nordling has not established this court's appellant jurisdiction. I think there may be a question that the court has. The court may have a question, well, if we found that there was no subject matter jurisdiction that removal was improper, what would be the impact on the order dismissing Nordling and Cunningham? Would it become a nullity? Would it be a free for all or it could be where Nordling and Cunningham Lindsay could be sued in this case again in state court? And the answer is no. There is a line of cases beginning with the Supreme Court's decision in shoe coat drainage district versus Baxter State Bank that holds that if a court acts without subject matter jurisdiction. And the court's order, the federal court's order entered without subject matter jurisdiction is not appealed, that order is still binding. It does not become a free for all. The order is not a nullity. It needs to be appealed, even if there is no subject matter jurisdiction. Turning to the substantive question, the specificity of the pleading. The specificity of the pleading in this case. One can scour the petition that was filed in this case and not find any allegations against Odom and Cunningham Lindsay alone. If the word defendant was substituted, if the word defendant was substituted for Odom, Cunningham Lindsay and Lexington, there is a complete lack of specificity. There is no allegation against Odom and Cunningham Lindsay alone. The case was consolidated with other cases rising out of the same insurance policy. And there were multiple affidavits filed in those other cases and those were before the court. In each instance, the affidavits established that Odom and Cunningham Lindsay had very limited authority given to them by Lexington. Their authority was to one look at the property and determine whether or not the damage was likely to exceed a certain threshold. If it did refer the property to a contractor, a evaluator that was chosen by Lexington. That is what they did in this case. And then their third responsibility was to get the evaluation back from the contractor and to enter it into a spreadsheet. The affidavit testimony that was before the court, properly before the court established that there were no acts by Odom and Cunningham Lindsay. But I think of understanding that his content is that that was more appropriate for discovery and they weren't given an opportunity to do that in this case. Is that? Well, I think you can. I would argue that it was not because the question is whether the court had jurisdiction or did not have jurisdiction. And this issue had been developed
. The order is not a nullity. It needs to be appealed, even if there is no subject matter jurisdiction. Turning to the substantive question, the specificity of the pleading. The specificity of the pleading in this case. One can scour the petition that was filed in this case and not find any allegations against Odom and Cunningham Lindsay alone. If the word defendant was substituted, if the word defendant was substituted for Odom, Cunningham Lindsay and Lexington, there is a complete lack of specificity. There is no allegation against Odom and Cunningham Lindsay alone. The case was consolidated with other cases rising out of the same insurance policy. And there were multiple affidavits filed in those other cases and those were before the court. In each instance, the affidavits established that Odom and Cunningham Lindsay had very limited authority given to them by Lexington. Their authority was to one look at the property and determine whether or not the damage was likely to exceed a certain threshold. If it did refer the property to a contractor, a evaluator that was chosen by Lexington. That is what they did in this case. And then their third responsibility was to get the evaluation back from the contractor and to enter it into a spreadsheet. The affidavit testimony that was before the court, properly before the court established that there were no acts by Odom and Cunningham Lindsay. But I think of understanding that his content is that that was more appropriate for discovery and they weren't given an opportunity to do that in this case. Is that? Well, I think you can. I would argue that it was not because the question is whether the court had jurisdiction or did not have jurisdiction. And this issue had been developed. It had been established and repeated cases across the same policy, arising out of the same policy. So I don't believe the question is one of discovery. And I believe also, additionally, and my clock says zero. So I may have... It means what it's saying. I'll last it my time and I will... Thank you. Thank you. There are two different stories here. The court order says summary judgment is granted because there's no valid breach of contract. Lessons and attorneys are very clever. He knows that's not the law. He knows that's an improper statement. So he's changed it now. Unlike the court order, he's saying there's not a valid claim
. It had been established and repeated cases across the same policy, arising out of the same policy. So I don't believe the question is one of discovery. And I believe also, additionally, and my clock says zero. So I may have... It means what it's saying. I'll last it my time and I will... Thank you. Thank you. There are two different stories here. The court order says summary judgment is granted because there's no valid breach of contract. Lessons and attorneys are very clever. He knows that's not the law. He knows that's an improper statement. So he's changed it now. Unlike the court order, he's saying there's not a valid claim. The problem with that is the facts don't bear this out. Lessons and paid $75,000 to my client. Was this believed just to be goodwill? Is this something they didn't owe? They're saying it wasn't part of the valid claim? If so, then why did they use that $75,000 as part of the exhaustion of the $25 million? It's an indemnity payment or it's not. They book as an indemnity payment. It's part of the $25 million and there's admission of liability. Not only that, then the excess barrier gets the same information and pays the claim under the policy. It just happened to be under their layer. So to say there's not a valid claim because that's what he would have to establish is simply false. But the other argument here is that he thinks that we have some sort of burden of proof on this issue when they move for some re-judgment. The problem for that under no evidence standard is again, we won't give in their files. We won't give in their discovery. All we had is the payment history which we put with it is what we established. That goes to the third issue. In fact, it's even stated in Judge's opinion that parties disagree about when Nordly presented a claim for payment. Putin is side the factual dispute. Nordly may not recover attorney's fees and interest without their predicate a successful breach of contract claim. So he realizes there may be a dispute about whether a claim was filed. A factual issue which would deny some re-judgment. But that's not what he grants it on
. The problem with that is the facts don't bear this out. Lessons and paid $75,000 to my client. Was this believed just to be goodwill? Is this something they didn't owe? They're saying it wasn't part of the valid claim? If so, then why did they use that $75,000 as part of the exhaustion of the $25 million? It's an indemnity payment or it's not. They book as an indemnity payment. It's part of the $25 million and there's admission of liability. Not only that, then the excess barrier gets the same information and pays the claim under the policy. It just happened to be under their layer. So to say there's not a valid claim because that's what he would have to establish is simply false. But the other argument here is that he thinks that we have some sort of burden of proof on this issue when they move for some re-judgment. The problem for that under no evidence standard is again, we won't give in their files. We won't give in their discovery. All we had is the payment history which we put with it is what we established. That goes to the third issue. In fact, it's even stated in Judge's opinion that parties disagree about when Nordly presented a claim for payment. Putin is side the factual dispute. Nordly may not recover attorney's fees and interest without their predicate a successful breach of contract claim. So he realizes there may be a dispute about whether a claim was filed. A factual issue which would deny some re-judgment. But that's not what he grants it on. He baches upon a breach of contract which is expressly denied by the link case. And that you don't have to have a breach of contract, you just have to be liable for it. And for 15 months, election time is liable in ultimately delay the payment of the excess carriers because I didn't make that payment. What's your support in the record for your brief characterization of the $75,000 payment as initial and advance? There's no dispute about it, Your Honor. Both sides agree that that payment was made. Your support is that there is no dispute but they absolutely do dispute. And I'm asking you what's your support in the record for your characterization of it as initial and advance? No one disputes $75,000 in paid. I know that. And so what I would characterize it as is a claim payment. They characterize it as an advance. That's not me. I would characterize it as a claim payment. But taking their language that it was in advance, that still is some evidence of a viable claim. You can't conclusively say that by paying $75,000 in any context, that's evidence that there is no claim. That's turning logic on its head. Furthermore, you do have the evidence also in the record that the remaining balance was paid by the excess carrier. Now, let's continue in the end. They want to contest that. But we're not trying to enforce a summary judgment here
. He baches upon a breach of contract which is expressly denied by the link case. And that you don't have to have a breach of contract, you just have to be liable for it. And for 15 months, election time is liable in ultimately delay the payment of the excess carriers because I didn't make that payment. What's your support in the record for your brief characterization of the $75,000 payment as initial and advance? There's no dispute about it, Your Honor. Both sides agree that that payment was made. Your support is that there is no dispute but they absolutely do dispute. And I'm asking you what's your support in the record for your characterization of it as initial and advance? No one disputes $75,000 in paid. I know that. And so what I would characterize it as is a claim payment. They characterize it as an advance. That's not me. I would characterize it as a claim payment. But taking their language that it was in advance, that still is some evidence of a viable claim. You can't conclusively say that by paying $75,000 in any context, that's evidence that there is no claim. That's turning logic on its head. Furthermore, you do have the evidence also in the record that the remaining balance was paid by the excess carrier. Now, let's continue in the end. They want to contest that. But we're not trying to enforce a summary judgment here. What we're saying is a summary judgment was granted against us even though they admitted and paid $75,000 and their excess carrier paid it too, based upon the faulty legal premise that there was no breach of contract. Nothing to do with whether or not a valid claim existed because the judge himself admits there's a factual dispute on that and hence a reason to deny the summary judgment. Just dictionally? Before you get your facts, they're factually also an oral argument and then in their brief. They both said that your representation that you requested a scheduling order didn't have a basis in this procedural history. What's the record site for your statement that you requested a scheduling order? I don't have the exact record site but I can point you to the document itself. Our responsive motion for summary judgment, expressly indicates that we asked to do discovery and were denied it because of the schedule in order. This case was consolidated with the others and he had a standing order that you can't do discovering until we get a trial date set. Simple. We asked for it in the summary judgment. We went to all of the hearings. We repeatedly called over to Houston. And before a scheduling order was ever entered in the entire case, all the hundred plus plaintiffs were dismissed in some capacity. We were the last one standing. We were the only ones that attended every hearing, fought every motion and finally got an order out of him over two years later. And that order itself, the summary judgment against us, is all based upon a completely different argument than what you heard today. And that that has to be a breach of contract in order to port a claim for interest and penalties under chapter 542. That's not Texas law. That's all. That has never been
. And the attempt to change it here today doesn't change with the judge put this order. Thank you very much for your time. Thank you Mr. Litz