                                                                                  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”).

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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




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