ACCEPTED
01-14-00979-cv
FIRST COURT OF APPEALS
HOUSTON, TEXAS
1/15/2015 2:27:48 PM
CHRISTOPHER PRINE
CLERK
Case Number 01-14-00979-CV
IN THE COURT OF APPEALS FOR THE FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
FIRST JUDICIAL DISTRICT OF TEXAS1/15/2015 2:27:48 PM
CHRISTOPHER A. PRINE
Clerk
at Houston, Texas
__________________________________________________________________
In re Interinsurance Exchange of the Automobile Club,
Relator.
__________________________________________________________________
RELATOR’S REPLY TO REAL PARTY IN INTEREST’S
RESPONSE TO PETITION FOR WRIT OF MANDAMUS
__________________________________________________________________
From Cause Number 13-DCV-203651 Pending in the
240th Judicial District Court of Fort Bend County
__________________________________________________________________
WALTERS, BALIDO & CRAIN, L.L.P.
Gregory R. Ave
State Bar No. 01448900
greg.ave@wbclawfirm.com
David H. Bradley
State Bar Number 00783704
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, Texas 75231
Telephone (214) 749-4805
Facsimile (214) 670-1670
bradleyedocsnotifications@wbclawfirm.com
January 15, 2015 ATTORNEYS FOR RELATOR
TO THE HONORABLE FIRST COURT OF APPEALS:
Relator Interinsurance Exchange of the Automobile Club (“Auto
Club”) files its reply to the response filed by Real Parties in Interest John
Amponsah and Melanie Amponsah (the “Amponsahs”) to Auto Club’s
petition for writ of mandamus, pursuant to Texas Rule of Appellate
Procedure 52.5, and would show the Court as follows:
In their response to Auto Club’s mandamus petition, the Amponsahs
argue the only way the trial court could properly assess whether the
expert1 applied acceptable methods and properly analyzed the cause of the
foundation damage in question is by comparing his evaluation with others
reports he has provided Auto Club. [Response at p. 6.] This position was
explicitly rejected by the supreme court in In re Nat’l Lloyds Ins. Co., No. 13-
0761, 2014 WL 5785871, at *2 (Tex. Oct. 31, 2014) (orig. proceeding).
As discussed in Auto Club’s petition, when faced with this exact
same argument by the real party in interest in Nat’l Lloyds, the supreme
court declared: “[W]e fail to see how National Lloyds’ overpayment,
underpayment, or proper payment of the claims of unrelated third parties
1
The designated expert witness at issue in this matter is Auto Club’s retained expert Derrick S.
Hancock (“Hancock”).
1
is probative of its conduct with respect to [real party in interest’s]
undervaluation claims at issue in this case.” Id. Here, the Amponsahs do
not and cannot demonstrate how reviewing Hancock’s prior reports could
in anyway shed light on whether he employed proper methods in
evaluating the Amponsah’s foundation damage. See Transcon. Ins. Co. v.
Crump, 330 S.W.3d 211, 215 n.2 (Tex. 2010) (outlining the factors for
determining the reliability of expert testimony). Nonetheless, the
Amponsahs insist they are permitted to employ this same approach
expressly rejected in Nat’l Lloyds to contest the validity of Hancock’s
methods.2 [Response at p. 7.]
In conclusory fashion, the Amponsahs also argue that it was within
the trial court’s discretion to order production of thirteen years’ worth of
Hancock’s reports simply because the trial court has broad discretion to
define the scope of discovery and it must have found the reports are
relevant to whether Auto Club breached its contract. [Response at pp. 6-7.]
2
Perhaps even more astonishing is the Amponsahs contention that the Texas Supreme Court’s
opinion in Nat’l Lloyds is not “authoritative.” [Response at p. 7.] As an opinion of Texas’s
highest court and being directly on point with the issue before this Court, Nat’l Lloyds is not only
“authoritative,” but it mandatory authority. It strains one’s imagination to think the Amponsahs
were unaware of Nat’l Lloyds’s controlling and authoritative position.
2
Notwithstanding the Amponsahs’ suggestion to the contrary, the
supreme court has repeatedly held that a trial court does not have
unlimited discretion to define the scope of discovery, but must reasonably
tailor discovery to “include only relevant matters.” In re CSX Corp., 124
S.W.3d 149, 152 (Tex. 2003). The Amponsahs have not and cannot offer any
explanation as to how Hancock’s prior reports have any bearing
whatsoever on whether Auto Club improperly denied their claim. See Nat’l
Lloyds, supra, 2014 WL 5785871, at *2. Consequently, the trial court abused
its discretion by ordering production of the reports at issue.
Because the trial court abused its discretion by ordering Auto Club to
produce documents that have no bearing on the sole claim at issue in this
case and exceed the permissible boundaries of discovery for evidence of
witness bias, Auto Club respectfully requests the Court grant its petition
for writ of mandamus in all respects and order Respondent District Court
Judge Thomas R. Culver, III to vacate his Order and deny Plaintiffs’ motion
to compel production of Derrick S. Hancock’s reports for the years 2000
through 2012, and for such other and further relief to which Auto Club
shows itself entitled.
3
Respectfully submitted,
WALTERS, BALIDO & CRAIN, L.L.P.
By: /s/Gregory R. Ave
Gregory R. Ave
State Bar No. 01448900
greg.ave@wbclawfirm.com
David H. Bradley
State Bar Number 00783704
bradleyedocsnotifications@wbcla
wfirm.com
Meadow Park Tower, Suite 1500
10440 North Central Expressway
Dallas, Texas 75231
Telephone (214) 749-4805
Facsimile (214) 670-1670
ATTORNEYS FOR RELATOR
INTERINSURANCE EXCHANGE OF
THE AUTOMOBILE CLUB
4
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i)(3), the
undersigned certifies that this instrument complies with the type-volume
limitations of Texas Rule of Appellate Procedure 9.4(i)(2)(C).
Pursuant to Texas Rule of Appellate Procedure 52.10(a), the
undersigned counsel hereby certifies that he has made a diligent effort to
notify all parties by expedited means of this request for temporary relief.
Exclusive of the exempt portions identified by Texas Rule of
Appellate Procedure 9.4(i)(1), this reply contains 633 words, including
footnotes, headings, and quotations. In providing this word-count, the
undersigned is relying on the word count generated by the computer
program used to prepare the reply.
This petition has been prepared in proportionally spaced type-face
using Word (version 2010) computer program in Book Antiqua 14 point
text and Times New Roman 12 point footnotes.
/s/ Gregory R. Ave
Gregory R. Ave
5
CERTIFICATE OF SERVICE
On January 15, 2015, a true and correct copy of this instrument was
forwarded to the following persons in the manner indicated below:
The Honorable Thomas R. Culver, III (Via Hand Delivery)
Presiding Judge of the 240th Judicial District
Court of Fort Bend County, Texas
301 Jackson
Richmond, Texas 77469
RESPONDENT
James E. Rensimer, Esquire (Via E-Serve)
Everett Day, Esquire
9525 Katy Freeway, Suite 128
Houston, Texas 77024
JR@RensimerLaw.com
ATTORNEY FOR REAL PARTIES IN INTEREST
JOHN AMPONSAH AND MELANIE AMPONSAH
/s/ Gregory R. Ave
Gregory R. Ave
6
in Re Interinsurance Exchange of the Automobile Club
Combined Opinion