judgment really for the plaintiff wesco winter and company holding that the policy did not cover their claims against the insured lead for what the reason we're asking the court reverse it is twofold first there is a question effect as to whether mr white first received notice the leighton's mail practice claim during the policy period is secondly there's also question of fact we believe whether mr white knew or should have known of it now practically when he purchased the policy and we have legal matters but they were also fritz they socialise they travel together they constantly saw each other the evidence actually show that they were very close the reason that we would be remiss in not  acted as his lawyer from time to time as sar is part of selling a brac a background to show the traditional basis for fishy which is a reason to post faith and trust in someone else with respect to actually asking for  be imposed in the recent petition based upon lawyer client relationship even west going east that nothing in the original petition was a claim under the policy you only said that about twelve times and you forgive me your honor when you get a point i guess i make it as often as i but how does that i mean just looking at it i'm sure you know the paragraphs by number he reach a producer duty thirty nine white code producer duties to the latents next sentence white is a board certified commercial real estate attorney who has served as the latents attorney advisor incontinent yes your over that and just the earlier paragraphs again and again he is the real estate attorney and not only his friend but also his coast representative mr albert mclaughlin had a telephone call as to why where they discussed the original petition in that telephone call according to mr mclaughlin's testimony they discussed the background they talked about the petition in the history between mr and mr white mclachlan's testimony was is also reflected in his note that mr white told him this was not arising out of a legal or illegal relationship this was out of our friendship and that mr mclaughlin agreed and said i don't believe this my best case in the fortuity doctrine the distaff which is the relevancy enter is it knowledge of the acts or knowledge by the insured that the acts clause liability you say the latter right i believe the latter and what's the best case  arbitration that talks about how it had been a witness between two different parties and the parties who were arguing about whether or not were in tech had negligently or intentionally failed to prod provide services under a warranty contract although were in tech was not a party to it it was there in prison and heard all the allegations and corey the court about him being negligent or intentionally remiss in his program because it was original petition but based upon mr mclachlan's telephone call and his testimony in the record that we've talked about the only evidence that would apply that mr bite knew anything was what was in the knows there's going to be a claim i believe this is in his deposition testimony forgive me being counsel of record maybe makes it difficult to parse out what is fall in the record in this was massive with respect the summary judgment but i believe in that in petition the reason that they had that discussion is because the broker for mr white is a recall his insurance broker told mr watt you know you ought to give this to w believe that's the reason that it happened but when he filed the policy application he said there was nothing pending right he said that there was no claim pending that's right and as mr mclaughlin testified and i don't believe that well let me just policy then that was a proper answer i assume that when the latents got counsel they got they could afford good counsel and i would assume that whenever they filed their first petition they must have thought they were going after either whites assets like that oil well that he had from them or else the or else a very sizable personal liability policy but then maybe but then they figured out hoops maybe we need to bring in the professional liability insurer to which is what or else they discovered it during discovery that maybe he didn't have a personal liability policy and now we're going to make sure we get the a practice claim because it's always that you know live by the sword die by the sword and not wanting to take given the facts as the war that they did had this long relationship that there was no written counsel agreement with respect to this transit transaction given the fact that mr white was a thing as an intermediary between two folks making that allegation hey i'm about the oil investment of the floorplan both both rexton the same thing mr parks in respect to the floor pull in with the land of is with mr is bill he was standing in the middle between the lanes on the within those parties on the other candidly we found out later he represented them previously in his career but not wanting not to do q so more of the legal malpractise in two years certain that you have a right that they either did or should have represented someone as a lawyer and engaged in discovery that would satisfy you that why would why wouldn't he anticipated a professional liability going to come out of that well let me go back to that faction not that mr layton's went to mr white about this it's exact opposite mr white it but the way it all got discovered i believe with mr parks white what layton wasn't getting his money any more out of the four plan and he at some point white said me no alimony call and layton called up parks and park said well hi been paying like all the time you're exactly right and that is when the house of cards began to fall then at that point we knew that there was money that was not being paid back in that there was a lawsuit based on  something which was why he was initially sued for theft and fraud big circling back to the point i was trying to make a moment ago so i think this underscores that yes we did allege in the petition that there was a fiduciary duty yes we did talk about the fact that mr white had been his attorney in the past but that was part of the penumbras of cases originally presented that yes he acted as counsel yes he was made by mr they were friends they socialize they travel with cruises together all initially as part of the overall issue that yes they're going just friends or confluence of visors for each other which gives rise to the traditional notion of with respect to i do want to point out one other issue if i may with respect to judge means order particularly with respect to the notice record and the way that mr judge means ruled and i have known judge me for years and respect him immensely but in his opinion this is how he concluded policy that when there is a question as to whether or not there is coverage and an insurance policy then all inferences should be that there is coverage and so with all due respect i do think judge means his ruling does havoc with that because he says doctors section of his opinion i would agree but it was in the notice section he dressed for to be separately later in the thank you address mr mclaughlin is testimony in our brief and it was addressed in detail in the summary judgment brief and we believe there's no problem with mr mclachlan's testimony he was addressing hypothetical situations and he was addressing what would happen if the legal services definition wasn't satisfied with there be a timing issue versus the opposite so that we don't think there's any relevance that's in the deposition in mr mclaughlin step  more importantly and more fundamentally to to respond to to judge chicken since question i believe opposing counsel is correct in part when he said that this is a duty to indemnify case rather than a duty to defend case but the rest of what opposing counsel said i disagree with the this is a contract interpretation case and so there is a interpretation of the insurance policy only if there's a finding of ambiguity which there were has not been in this case would there be an opportunity to argue that parole evidence was admissible and then we could argue about what you know what the import of what mr mclaughlin said but there was no finding of ambiguity in the relevant policy language so that it is a political right and that would go to one of the two grounds right that judge means ruled on and we have addition the best argument is that and i think the ladies really say two things they say a new claim was added in the amended petition and a new party was added white p c and i think that in both of those they fell short white in white p c or essentially one hundred percent overlapping all of the cases in the leighton's to briefs deal with situations they have a few cases where the court found it was in most cases the court nonetheless found it was still one one claimant it was not in quote new claim the case actually from the seventh circuit applying illinois law that they that they cited in their reply brief jewish community foundation the court hypothetic the court actually ruled that the newly filed a complaint was actually the same for insurance coverage purposes as the original complaint in hypothetically in dicta they said if a new party had been sued and they they named it the federation then that would be a different story perhaps that was dicked more important for our purposes in that situation and in every case i'm aware of the new party is completely unrelated and doesn't overlap with the insurance it would be another defendant here we have white and white p c he's the principal and the agent all the evidence of stablish is that for all relevant coverage purposes what white new white can only at white p c can only act through its agent white and whites knowledge is attributed to white p c it would not make sense to say there was something that white knew but white p c didn't know that just makes no sense both to the notice argument and for the known loss argument and it also we have a third basis to deny coverage which the judge law doesn't get any insured anywhere it's certainly not an attorney insured is charged with understanding his policy when the complaint the petition was amended to add professional negligence the factual basis of those of white conduct was the same and if you look both at the amended petition comparing it with the petition and more importantly and as as counsel recognize this is a duty to indemnify so let's look at the actual facts and let's look at the underlying trial and the judgment and if you look at the judgment on multiple causes of action the conduct is the same and that's the test arise out of same nucleus of facts correct and that's or yes that is to tend the best case for that is yes conduct allegations like fraud the leighton's apparently elected their remedy and their remedy was not professional right negligence if you look at the judgment order look at the jury verdict in the final judgment in the underlying case the tort case and what you will see there is that the dollar amount could not be for professional negligence because it wasn't reduced by thirty percent the jury found leighton's were thirty percent responsible for the negligence that was the only opportunity the jury had to assign no fault to the latents and when in that count they assigned thirty percent to the latents so if the final judgment was was was based on professional negligence it would have been reduced by thirty percent and it was it was one hundred percent and so therefore the actual facts show that white was found liable and a judge to have to pay a sum that wasn't professional negligence and that goes to undercuts the argument that well there's coverage because the complaint was amended in to include professional  ls but more put more basically yes it did become a nucleus of operative fact is set forth in the petition and the actual evidence at trial white did a lot of things you can label i think in our case we cite a texas fit i think a fifth circuit case about labeling the label doesn't change coverage insurance coverage isn't based on the label it's based on the actual facts when you're talking about the duty to indemnify and that is texas law you have a texas law a case on the fortuity doctrine the same question i asked opposing counsel is to see enter the santer of the underlying act or the sea entered that the act would be make a claim she judged in my writing asking the question correctly seventy that says there's nothing wrong with an insurance policy applying to x or causes of action anything that happened before the policy incepted as long as neither the insured or the insurance company are aware aware of what and they say lawsuit because it was the doctrine of emerges out of first party cases where there's been a fire or you know your damage it does become more difficult the test is and if i can throw in here if you read the ladies reply brief they are forced to cite two out of state cases including a bar journal article which actually argues for a change in texas for y law so that's you know the texas for two to go on that we have is the basis to judge me applied correctly white new even if a petition hadn't been filed against white in before the policy period okayed so there's no doubt and judge means his opinion makes clear white knew that there was a claim against him so we don't really have to answer your question there was a clear was a lawsuit against  white prior to the wesco policy period so claim laws bad conduct he knew all of those things he may have disagreed with it but he knew of it yet seen well i would say he may not have thought he was going to get caught but he knew what he was doing he may not have thought that he was going to get caught and he convinced the leighton's that they were going to get paid so he may have thought they're not going to bring a claim against me because they believe that they're going to get paid so you might have an interpretation that doctrine won't apply unless white thinks that he's going to get sued but in it but even on that the straw it sort of the strongest version he still knew he still knew before the policy broke because he was we would argue even if he hadn't been sued he knew in april two thousand and thirteen he told the whites i guess you're not getting your you know your money all these other sources have dried up and you know you're out the money now any reasonable person i think would realize at that point even if you hadn't known it at that time i mean even if he hadn't even spoken with them many of you know that he was just apparently getting into financial difficulties from time to requirement which the whites i'm sorry the leighton's have the burden to establish that the ensuring agreement applies there we're not talking about an exclusion here we do have an exclusion also we talk about but that wasn't reached by  judge means it's in our brief and we believe that while we bear the burden of showing that the fraud exclusion applies we met that burden in the proceedings below although judge means did not need to reach that disc or could affirm that it needed to launch any basis and we believe the fraud exclusion applies because it's it talks about it doesn't apply to a ny act of dishonesty or fraud arising out of in the texas courts the final arising out of in their words there was not just any act of dishonesty by white the jury found multiple acts of dishonesty and fraud so we believe as as an all additional argument of the fraud exclusion but we believe judge means correctly applied the policy language and and held that the lanes did not meet their burden of showing that a claim was first made during the policy period due to the prior petition that was filed in spite of the amended petition with a professional negligence cause of action relating to  facts and white p c in it as a new defendant in addition to the white himself so we believe that that is clear  petition that was filed before inception really let led to three consequences for insurance coverage purposes the two i think we've talked about which is the or the for two fortuity doctrine and a claim first made which is part of the insuring agreement there's a third consequence which which judge means did not need to reach and that is the policy provisions one eight to which is in our brief and that says that as a as a  prerequisite to coverage no insured and so if you get here we potentially have to insure it's white and white b c but there is no insured head knowledge of any act or omission that might be expected to be the basis of a claim and that addresses the question of potentially i believe there was a reference in the prior argument to well judge means just set a potential well if you look at one eighty two it doesn't require a lawsuit or a claim it required says no insured had knowledge prior to the policy period of any act that might be expected to be the basis of a coin that standard claims language and white head knowledge she was an insured and he had knowledge prior to the west cope here eod of an act or omission he had several acts and omissions that might be expected to be the basis of the claim and in fact they were the basis of a client and so that again that gets rid of the any problems arising out of the white versus white p c because it says in the end no insurer is the language no insurer so that's one eight two which is which is in our brief and so i won't be labor but the those are really what we see as the three consequences of the fact that a petition was filed based on acts that had  occurred and liability that was going to attach prior to the policy period in terms of i have mentioned you know adding white p c in the amended petition i think that the only texas case that the latents are able to cite is first professional vs heart and again if you look at that medical practice group case there were multiple physicians in addition to their practice group there were multiple claims against various defendants the practice group was then added in i think to cases distinguishable on that basis that it is not the professional corporation and get insurance coverage by doing so and we really do believe this this case was built for exclusion and a if a again i can go to something that the judge means did not need to reach because it applies to any  dishonest or fraudulent act and we believe there are multiple multiple of those so the district court declined to change the terms of the wesco policy or change the fourth texas for doctrine to accommodate the latents in this court should decline the invitation as well i think the one instance in which the latency asked the district court to change the policy was delaying woods about and this is another defense to coverage that argument that the policy has a retroactive to and therefore it covers everything after the rope your active date and you can't use the known laws doctrine and that's simply incorrect we have cases such as warren tech which specifically applied the fortuity doctrine to claims made coverage claims made policies almost always ever at your active dates and the retroactive date means you can get coverage for a date after the retroactive date as long as everything else in the policy is satisfied including the knowledge required so you can't have a policy period act that you know about and get rid you can have an unknown anything after that date which is not unknown to the injured can potentially be cut so we believe that the wesco that the lns argument on the retroactive date is non merit and i believe we ended up i think with five coverts defenses in our brief since the late had to quite frankly we ran out of pages we had submitted a few more in the district court but we didn't have room for them in when representing them as a lawyer as we later believed he was he failed to advise them to secure the transaction was to get to the trust for the transactions to ensure that there was some sort of paperwork done to ensure that if they were ladies that they had a right of security to reach through it get repaid through it another way and by failing to do that in fact in the trial testimony that wisco put into the record the whole reason that a legal malpractise expert was brought in to testify was someone to say yes as a lawyer in this transaction mr watt failed in his duties not because he made misrepresentations but because he failed fraud back in august of two thousand and thirteen that it necessarily alstom it that he took all the facts that led to the lead in the practice again the facts are alleged were different they were not the same in the fact is the fact that he may have known of claims of theft or fraud exactly which would be the exact opposite of lending of knowing that there was a potential risk of the policy was purchasing the reason being deaf to fraud or excluded that claims of the after fraud were not part of the known risk because he'd been sued for theft and fraud that's not true with respect to under warranty act because it was not with respect to theft and fraud it was not a risk at all because it wasn't part of the policy the question was whether or not there was a known as respecting the legal malpractise and again there is no it other than just what's on the face of the vision petition that there may have been a claim arising from legal services something that whiskas representative again said is council in their brief decided to kennett to lou independent school district i wrecked fact i believe just joan to draw on the panel for that as well as commercial union insurance company vs roberts both of those opinions dealt with a fraud exclusion under a in our opinion would be they would be independent and ok thank you very much