Case Number 01-14-00979-CV

IN THE COURT OF APPEALS FOR THE

FIRST JUDICIAL DISTRICT OF TEXAS 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 ACCEPTED 01-14-00979-cv FIRST COURT OF APPEALS HOUSTON, TEXAS 1/15/2015 2:27:48 PM CHRISTOPHER PRINE

CLERK1 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, pu rsuant to Texas Rule of Appellate Procedure 52.5, and would sh ow 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 expert 1 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. Oc t. 31, 2014) (orig. proceeding). As discussed in Auto Club’s peti tion, 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 s ee 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”).2 is probative of its conduct with re spect to [real party in interest’s]
undervaluation claims at issue in this case.” Id . Here, the Amponsahs do
not and cannot demonstrate how review ing 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 Ampons ahs 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 Ampons ahs 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 dire ctly on point with the issue before this Court, Nat’l Lloyds is not only “authoritative,” but it mandatory authority. It strains one’s im agination to think the Amponsahs were unaware of Nat’l Lloyds’s controlling and authoritative position.3 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 produc tion 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.4 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 CLUB5 CERTIFICATE OF COMPLIANCE Pursuant to Texas Rule of Appe llate Procedure 9.4(i)(3), the undersigned certifies that this instrument complies with the type-volume limitations of Texas Rule of A ppellate Procedure 9.4(i)(2)(C).
Pursuant to Texas Rule of A ppellate Procedure 52.10(a), the undersigned counsel hereby certifies th at 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. Ave6 CERTIFICATE OF SERVICE On January 15, 2015, a true and co rrect copy of this instrument was forwarded to the following person s 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 PA RTIES IN INTEREST JOHN AMPONSAH AND MELANIE AMPONSAH

/s/ Gregory R. Ave Gregory R. Ave