speaking for acceptance let me get out of the way to begin with the the only negative point i see for my clients appeal which is that it is a a long trudge through boring facts but after that it's all uphill because number one i think it's an easy case and number two it involves a couple of of important points it's not easy because of the long slog part of it it's easy because of the procedural part of it which is the waiver is acceptance should be before this court today if at all as a napoli it's not because judge white took away the jury's verdict now if exceptions were the apple e reseize would not have the ability to come to this court and make any complaint about the sufficiency of the evidence to support the juries he answers to questions for in fuck off because when a party doesn't make a rule fifty as a motion for j m l it loses not only its ability to make a rule fifty b motion for j mail it also this is its ability to challenge the sufficiency of the evidence on appeal and that's this court's opinion  casually if it versus acceptance makes that clear among other cases so if the judge had not overstepped his very serious and rander to a rule fifty be ruling that under the rules he didn't have the authority to render then there probably wouldn't even be an appeal or if there were would be even easier than this one is because reseize would simply not be able to say a word about the sufficiency of the evidence i'm suggesting to the court that that intended outcome shouldn't be foregone simply because the judge overstepped his boundaries procedurally so because there was in fact a waiver of a fifty b motion the j m l ordered by the court of course should be didn't really address it that i recall he i argued it he initially said yes neutral and i took that as accepted that the waiver argument was correct but would he decided to set aside his new trial order and replace it with an order for judgment as a matter of law against acceptance in favor of reseize eat didn't really explain why he could do that if there had been for example a subsequent trial if he'd granted a new trial and then the issue comes up again then of course he could have revisited it and granted a motion for jan now in a second trial situation if appropriate if there had been the rule fifty a motion in a second trial situation but with no intervening event no intervening jury trial i don't think it matters if he waits one month after trial or twelve months after tall nothing has happened but the jury verdict so it is a rule fifty b situation no matter what the passage of time has nothing has happened he's still basically looking at the jury verdict and sign i'm going to set it aside and he doesn't have the power to do that under rule fifty b without a rule fifty a motion so that to me is the easy part because the harder part of the case that takes up most of the briefing is the substantive part of the case and it's important because it it implicates not just acceptance is right under the seventh amendment to a jury but every party is right and this matters to it should matter to everybody on every side because you never know which enjoy will be on i know that i and many other practitioners love to go to federal court because our district judges will actually make legal rulings and that's a huge positive factor to be in federal court but it shouldn't be that a judge takes that power so far that he takes away a jury verdict and that's what happened here now i haven't really i say that it's a long slog but i really think it's an easy one because on questions warrant five starting with question four we're not looking at the need to make a circumstantial  inference as we would in an in an arson finding we're not challenging the arson finding it was against acceptance but on question four was there a bridge did receipts breach the condition that's not a circumstantial evidence issue that doesn't require inferences that's result by direct evidence it minutely it's not a lot of direct evidence but it's one very very powerful piece of direct evidence which is the denial letter put in the record with no limitation by my client that said you didn't give us any records and as explained to the court with such haitien of this court's precedent that is was of course it was hearsay it was admitted for the truth of the statement in it and it was received as such there was no challenge to it there was no need to put on a witness this court's precedent as well as other circuit courts says that of course being hearsay it comes in for its truth at the united states supreme court as well as this court has said in anderson versus liberty lobby and many other cases that the movement to take the same standard summary judgment context the nonmoving is evidence is to be believed  that's what the supreme court said in anderson versus liberty laughton on the question of your records judge hoyt said the record in the cage showed that the means for obtaining those records or in your hands we acknowledge receipt of various things that included the records that had been discussed as one through to nineteen and it also included authorizations for financial records and that's what judge white was referring to an authorization of course is not the financial records itself so that is zero evidence that that acceptance receive financial records judge courts implication was where you got an authorization for financial records you should have followed up on it you would have gotten what you needed you don't have a complaint that isn't true because as the my briefing takes great care to point out the records that were relevant the only records that would have mattered were the profit and loss statements the balance sheet the detailed financial records kept by recent cell phone it's own computer which it had for twenty two months after the far it never produced any of those records sheree swarm testified in a deposition and was a beach to trial with the evidence that she never damages that ever not any other she didn't download it when exceptions asked her to provide those records during the eleven months of claim him lying she gets a denial she still doesn't produce the records and they're there for twenty two months after the far those are the only records that would have been read all of it to show whether the business was making money on a month over month basis and so getting third party regulars would have done stepping just back i mean is your your brief puts it very strongly that sort of there will be chaos and contract can't matter if cooperation causes on appeal but here and i think you're going to this a little bit the cooperation clause in question can you quoted in the policy is that they have to allow you to examine or is there a provision that they have to actually provide to you certain documents i think that would be a distinction without a difference in the modern world what's the what's the language you're quoting with their t to the one is i think it's condition three so park six which is you you must provide books and records and it specifically says books and records and it does say examine yes well i think ok let's be as  possible six as often as recently acquired permit us to examine and inspect your books right but there but you're but the denial letter that you're saying it is thin evidence says you didn't provide us to these is that well i think your honor the the condition was framed at a time when the there was no electronic storage there was these policy provisions that back many decades ok maybe men never different way for me to get at this when where in the record will i find the requests that specifies items that she didn't then give you that's the initial letter that's the january within a week after the far there's a l that articulate says these financial documents with some level produce it uses the very language of the aussie it quotes it is says if i to us financial records quotes the condition you just read and it says we want you to provide these two ok and then the denial letter is what you're primarily relying on although the cross of the lady was sort of tortured but that denial letter in turn is saying those were never given to us the denali letter is unequivocal positive direct evidence that they were never provided and under the this court's precedent the united states supreme court's precedent that is to be believed for the purpose of a j m l now obviously did jury could have disbelieved it but the jury didn't disbelieve it the jury reaches she preaches the contract she forfeits the insurance correct well now that's question for then we get to question five and admittedly for question five there's not really direct evidence as you know this is the prejudice however i would argue to the court i think that it is manifestly true that given the standard for materiality that this court has discussed and that the texas supreme court has discussed there's only one reasonable answer that can be given to that question and that it's what's prejudicial that was a material breach for the same reason that it's a prejudicial breach the the right herds of an insured regarding its operations its books and records in an arson case or crucial to evaluate motives motive is essential if you are the source who might have been the arson well if you if the german company thinks it's the insured the only way they could possibly prove that is to show motive they're not going to be able to show motive without those books and records so yes there are crucial and in this case there was no suggestion that anybody else was was the arsonist except for reseize but so that's where the district court said if they did if the jury found it wasn't  really need to worry about the rats you have to be saying that's not a logical leap no big in the end of explain this in the briefing the reason that question five is not rendered moot by the arson the the no to the arson in question one is because question one did indeed ask about orson by reseize the jury said no because they didn't have all the elements they needed to say arson by rhesus well admittedly we had that one of those elements was missing we never can prove by reeses and the reason we could prove it is because we couldn't get the records that are uniquely relevant to it and that is the books of records that would show or you making money or you not making money on a month over month basis for sure in your first year of operating the restaurant you're going to be able to show a loss on your tax return because you're going to have so much start up expense it will overwhelm your profit unless you really profitable that's not the question tax returns wouldn't help it's the month over month are you bleeding cash or are you making cash and and so they would never produce those although it was admitted that they had been so the jury evaluating question five is first of all going to realize well this doesn't even matter unless there is arson by somebody i mean if there's no arson there's no issue on number five there's no prejudice there's no harm those records mattered only to arson by rhesus so if the jury isn't thinking arson by reese's is an issue here they're not going to be saying yes to question five it would be irrational as well any jury would be looking at the totality of the circumstances and saying if you're saying you had the records and the insurance company is asking for them you're obligated under the policy to give the why don't you give them then you're denied coverage was that argue to the jury the words you should answer five yes because you can't be a yes to  i don't recall and spending any i thought that that was i thought there was only one possible answer to that and so did the jury because it's inconceivable i mean they haven't eat to this day in front of this court they still haven't come up with have an articulated any cogent explanation why you would have the records and not produce them their explanation is their argument is we produce them but they have no evidence that they produced and the only evidence is from acceptance that they that require certain information be turned over and that's simply not true it's also not true that there was ever specific information that was requested of receipt that was not turned over and i'll cite the court in our brief in our opening brief on page thirty three we've extracted the exact language from their policy in that exact language says that a i see exceptions has the right to examine an audit books and records as they relate to the policy it also says and paragraph three the only other provision in the contract that deals with the issue says that as often as may be reason to require permit us to inspect the property proving the loss or damage and examine your books and records so that's what the policy says so where did you make your books and records available for them to examine absolutely when i mean record in page sixteen sixty three again at sixteen seventy one again at sixty seventy five she testified that she provided quote receipts invoices bank statements and tax return that's in the record at page sixteen between the attorneys so mr johnson the attorney representing a i see in his in a letter he testified that he received this he received information and he turning information over to a i c that's say you're limited in this it didn't say you can only go to the i r s it didn't say you could only go to a bookkeeper it was all encompassing so with there was authorizations what that means or honors is that i either  see intentionally fail to gather records from a third party or it means they felt inspect the records or it means that they're using they use the authorization as a pretext if you look at mr mckinney has it been unable to cite anything in that mr mckinney testified that they provided a request to receive they did not if you look at the letter that they provided it said that we have the right to inspect your books and records there's absolutely nothing in the record and judge court was very clear when he talked with what we're here to help me a little bit here is your argument to us as to obviously a cooperation clause you wouldn't dispute that a business needs to give over its records if it's properly asked it's essential to the coverage or so so then the answer to that would have to be one of four we did give it over and the jury interacted tory is wrong there's no evidence to support it now and that then they say well the deny letter is pretty darn thin evidence but it's there or you would be saying we didn't get it or even over because the request was too indistinct and therefore we didn't need to give anything over there a jury would therefore was wrong right that would be a separate argument or we didn't give it over and that's wrong that was a mistake but it's immaterial and the fourth one is none start with a policy the policy again request permission to examine the books and records and the record is clear that that they were able to and so we can look at the ever seat invoices that are in the record and we can determine from  the whether receipts was losing money or making no absolutely not and that's where but the policy also says permit us to make copies from your books records correct so if the jury made a finding that you didn't turn those over is your argument that there is no evidence to support that finding correct there are there are several issues here again you know we're we're jumping to the other issues that out you know that we get into but i can address that directly to the the jury sent a question back in their question was what does this authorization basically what does this authorization mean so the jury is confused as to what it what it means does it mean that that they requested information and didn't get it or does that mean that they requested information or didn't request information so the jury is confused and again sending that question back to the to the district court saying you know what do you mean by this authorization and i think judge court got it right when judge ward said that you have the right to examine the books and records that they give you not your station that's your your ability to exercise their right if you had but but but even more dr that says giving authorization means you don't need to comply with a duty to provide that you don't write it just because you give someone authorization that doesn't relieve you of a policy obligation to give them financial statements what the authorization requested by yeah say they requested it correctly can't then just say what you requested it you didn't get it therefore we don't have to comply with the coverage for your honor there's absolutely nothing in the record about any document that wasn't produced except a denial letter and i mean it's pretty darn thing that there's why wouldn't a jury be able to draw an inference from it doesn't say what was produced what was not produced we know what was produced i thought the lawyer said what was it today you know they're there they're going your was listed on their witness list the guy who who received the records now mr foreman testify that she delivered all of those records to the attorneys tax return makes famous everything she had she didn't have anything else so she cannot prevent you from examining something that she no longer had but i oversimplifying it just to save the jury did make this finding in his your argument that there was no evidence to support the finding correct that's your argument correct ok because again the information and that's what judge horton eventually discovered of you know after going back and looking at it he said well you know this is something because there is no evidence in the record of anything there were months that that went by in judge need in this is on the record of page ninety two he said all i need to enter is this letter so that the judge notified him while the evidence was still open that in order for you to to prevail on this theory you've got to show that you actually requested something because it was a assays burden to show that there was a breach receipt breach the contract by the not either not allowing him to examine and that didn't happen because they sent an investigator out twice to talk to mr foreman they talked to mr foreman assisted they had her computer there she said she downloaded information and provided that to the attorneys so that's all in the record that's in her testimony i all the evidence you have is from mr foreman saying this is what was on the computer this is what i produced the to the attorneys included bank statements invoice a tax return they didn't put on a witness from a assay to say they didn't receive side's attorney did did foreman say she gave the records to her her lawyers or or there was she said the attorneys so i said she only had one attorney salt i'm assuming when she did and again i'm i'm just looking as an officer of the court what happened it were there any records that she gave to her attorney that were not either produced to or made available to acceptance not aware of anything there's nothing produced to her attorney for tourney's that was not produced or made available to exceptions and not aware of a single thing here so your so the answer is no there were there was nothing like that there was nothing that she did that she produced to her tourney that he did not didn't produce to the so you can you can possibly represent as a fact that everything that was given to mr foreman to cancel that cancel turned  and they had they don't know what he got well no well what i would have done as a trial lawyer is i would have called mr johnson to the stand and said did you receive financial statements from receipts did you receive tax return from  need to give us a letter telling us from your side whether there were any books and records that were produced to you or your predecessor attorney in this case representing a foreman in rhys's that was that were the the other issue is the jury found that there was no arson and so we don't even get to the second point of whether there was the production of financial documents or not they found that there arson you got to show that the far originated from incendiary source initially that's a part of showing the arson so we don't even have to address the financial issues the that the jury looked  at the information that came from the gentleman they harvested chatman they they looked at that mr chapman made a conclusion he made a conclusion as soon as he went out there that there were some arson now  shows that they there was an arson investigator from the houston fire department he concluded that it was from an electrical source well joe he was a first person who went out there mr chapman agreed that there was there was issues would change of evidence so by the time he came out there you'd had ten fire trucks and you had construction crews going to the place damaging either so the most objective piece of evidence as to the arson comes from the houston fire department they said there was an alarm when they when they came out there which you know got rid of their assay the alarm claim that there was no working alarm and they also said that he's departed harman said that it came from an electrical source it was an electrical fire even assays on the other expert came out there and said it's an undetermined source the only person who said it was arson was mr chapman who came out there in within a few minutes of arriving there made a know he found evidence that would be common in a bar and restaurant he testified that page one hundred seventy one of the record it is common for either nol to be present where you got a bar were there beer and wine cleaning supplies so but but more importantly if you look at mr chapman he viewed a videotape of the fire and this is the evidence that the jury saw so the the full progression of the fire they did not see a single person spraying an accelerant not see a single person lighting the fire so it was unreasonable for the and just zone you had a question about whether they thought it was recent well the evidence show that it was not from an incendiary origin for the bars so that's why we believe that the jury's determination was that it was an arson which means that you know whether the financial documents were produced or not and then there was no prejudice because mr mckinney was able to ask ms foreman about the financial condition miss bormann admittedly that the  restaurant lost as most restaurants do in an issue year she admitted that it lost money so there they were able to argue that with the jury so just go and if mr mckinney is able to argue that usenet evidence then we think that the field therefore their finding to number one was was because there was no evidence that it was arson and therefore you know whether the records were produced or not was not around and going further to mr chapman came no evidence as to what was happening during that time period again there's absolutely not one letter from a s c to reach the saying here are books and records that we need here's what you haven't produced as a matter of the request for prejudice from the records and there is clearly reseize asked for economic damages extra contractual damages those are in the complaint those are in the joint pretrial order final creature order during the trial received introduce information showing that they had lost revenue from closing a location they lost revenue from not being paid so they could use that money to reopen the restaurant they lost the lease so there is a lot of evidence in the record of economic damages that she says they again we believe because they were using the less arson the  production of non production the records of the pretext we believe that you know the bad it is clear there so therefore the judge should have given an instruction to the jury that they should consider whether there was bad faith because again there's nothing in the record showing that they requested a single record that wasn't produced the authorization is just for determine allow them that's now in their control and again there's nothing in a contract you can look at the clear language of the contract there's nothing in there that requires  recreate records and there's nothing that says that that it wouldn't be proper for them to just submit the authorization so you know on it we ask that the the court remand this to just briefly your honor sir let me address the arson comments that were just made even though i think they're very perfect the houston fire department investigator came out with a team but he was just someone on a team there's no evidence that he was an a investigator the certainly is no evidence an arson investigation was done the evidence is clear that there was not even a lead light it was the middle of the night all they had was flashlights nobody could possibly have done an arson investigation in that council not just the jury didn't see the arson committed on the videotape of course almost no one ever sees an arson it's circumstantial but that's a moot point except instead when the arson issue the only reason that it's relevant is because we're debating whether it can co exist with the  she did not ever testify that your brief say she said she said they were she claimed they were making money on a month to month basis but on the tax returns they were declaring a loss and that's because of startup expenses what mattered arson is the month to month if you're bleeding cash month to month you have a motive a good test that meant they were making money she claimed they were right and that's exactly why we needed the records to verify or controvert that climb and that's why every insurance company in this situation needs records and that's why it's so crucial that they be provided as indicated by this court's unprecedented intel from our bank records in the receipts you were given whether that was whether he was net  expenses your bank records are just going to show what what we're what we're seat did she turn she had a point of sale system that would only register sales and they had this records and then ever produced them as explained in the brief council had told me and that's in the following council told me that they had them and then they never produced them ok what about expenses no record of expenses at all and that was crucial that was that produce bank records they have referred to an authorization council says the authorization was all encompassing it was not it was a general reference in a letter by a lawyer for acceptance to we haveour off the recession for financial records it doesn't say what kind there's no evidence that bank records were authorized there's simply nothing in the record to support the assertion that it was all encompassing certainly there is zero evidence that bike workers were produced absolutely none and by the way they there was a reference by counsel to the final the denial letter not citing what records were being produced it on page five of the denial letter which is at record two three three nine it quotes again the condition support six your books and records and support cooperate with us in the investigation of the climb and then it says we're denying because you were requested to provide financial information relating your business despite these numerous requests the requested financial information was never provided you have failed to comply with an essential policy requirement that's in the denali letter according to the united states supreme court in this court