in Re Interinsurance Exchange of the Automobile Club

Opinion

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