                                                                         ACCEPTED
                                                                     04-17-00070-CV
                                                          FOURTH COURT OF APPEALS
                                                               SAN ANTONIO, TEXAS
                                                                  7/20/2017 10:56 AM




                NO. 04-17-00070-CV
                                              FILED
                                              Fourth Court of Appeals
                    *****
                                              San Antonio, TX
                    IN THE
                                              Accepted:
           FOURTH COURT OF APPEALS
              SAN ANTONIO, TEXAS              3:43 pm, Jul 20, 2017

                     *****
OSBALDO HURTADO AVALOS AND ANTONIO HURTADO, AS
  ASSIGNEES OF KARLA FLORES GUEVARA, Appellants

                       V.

        LOYA INSURANCE COMPANY, Appellee

                     *****

        APPEALED FROM THE 111TH JUDICIAL
     DISTRICT COURT OF WEBB COUNTY, TEXAS

                     *****
              BRIEF OF APPELLANTS
                     *****

                            THE GREEN LAW FIRM, P.C.
                            34 S. Coria
                            Brownsville, Texas 78520
                            Telephone : (956) 542-7000
                            Facsimile : (956) 542-7026
                            jorge@thegreenlawfirmpc.com
                            letygarza@thegreenlawfirmpc.com

                            BY: /s/ Jorge A. Green
                                 JORGE A. GREEN
                                 State Bar No. 24038023
                                 LETICIA GARZA
                                 State Bar No. 24092405

      APPELLANTS REQUEST ORAL ARGUMENT
                     IDENTITY OF PARTIES AND COUNSEL
In accordance with Texas Rule of Appellate Procedure 38.1(a), Appellant presents
the following list of all parties to the trial court’s order appealed from and the names
and addresses of all trial and appellate counsel:

         Names                            Counsel                          Party
 Osbaldo Hurtado           JORGE A. GREEN                           Appellants
 Avalos and Antonio        State Bar No. 24038023
 Hurtado as Assignees      LETICIA GARZA
 of Karla Flores           State Bar No. 24092405
 Guevara                   THE GREEN LAW FIRM,
                           P.C.
                           34 S. Coria St.
                           Brownsville, TX 78520
                           (956) 542-7000 Telephone
                           (956) 542-7026 Fax
                           jorge@thegreenlawfirmpc.com
                           letygarza@thegreenlawfirmpc.com
 Loya Insuance             JOHN R. LYDE                             Appellee
 Company                   State Bar No. 12712700
                           VIDAURRI, LYDE, RODRIGUEZ
                           & HAYNES, LLP
                           202 N. 10 th Avenue
                           Edinburg, Texas 78541
                           (956) 381-6602 Telephone
                           (956) 381-0725 Fax
                           rlyde@vlrhlaw.com




                                            i
                                     TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL                                                                                   i
TABLE OF CONTENTS                                                                                                ii
TABLE OF AUTHORITIES                                                                                            iv
STATEMENT OF THE CASE                                                                                            1
STATEMENT OF ORAL ARGUMENT                                                                                       3
ISSUE PRESENTED                                                                                                  4
STATEMENT OF FACTS                                                                                               6
SUMMARY OF ARGUMENT                                                                                            12
ARGUMENT                                                                                                       14


I.    THIS COURT SHOULD REVERSE THE TRIAL COURT’S RULING
      BECAUSE APPELLEE HAD A DUTY TO DEFEND MS. FLORES
      GUEVARA ...................................................................................................14

      A.       The Eight Corners Rule Requires That An Insurance Company
               Defend Its Insured When A Lawsuit’s Pleadings Fall Within The
               Coverage Provided In Its Insurance Contract ....................................14

      B.       The Pleadings Of The Lawsuit Against Ms. Flores Guevara Fell
               Within The Coverage Provided By Appellee to Ms. Flores Guevara.17

      C.       The Texas Supreme Court Has Never Expressly Recognized An
               Exception To The Eight Corners Rule................................................18


II.   THIS COURT SHOULD REVERSE THE TRIAL COURT’S DECISION
      ON APPELLEE’S TRADITIONAL MOTION FOR SUMMARY
      JUDGMENT ON DECLARATORY JUDGMENT BECAUSE
      APPELLEE’S REQUEST WAS NO LONGER RIPE .................................20

      A.       Declaratory Actions Are Moot If One Of The Parties Has Already
               Chosen Its Course Of Conduct............................................................20

                                                       ii
       B.       Therefore, Appellee’s Request For A Declaratory Action, After It Had
                Already Committed To Its Conduct, Renders A Declaratory Action
                Moot....................................................................................................22

III.   THE TRIAL COURT ERRED IN GRANTING APPELLEE’S NO
       EVIDENCE MOTION FOR SUMMARY JUDGMENT.............................22

       A.       A No-Evidence Motion for Summary Judgment Must Not Be
                Conclusory...........................................................................................22

       B.       Appellee’s No-Evidence Motion For Summary Judgment Is
                Conclusory...........................................................................................24

       C.       Whether Or Not Ms. Flores Guevara Was Driving Is Irrelevant and
                Barred By Res Judicata.......................................................................25

       D.       Adequate Time for Discovery Had Not Passed..................................27

III.   PRAYER........................................................................................................31




                                                          iii
                                 TABLE OF AUTHORITIES

Amouri v. Southwest Toyota, Inc.,
     20 S.W.3d 165, 168 (Tex.App.-Texakana 200, pet. denied)...............14,23,25

Argonaut Sw. Ins. Co. v. Maupin,
     500 S.W.2d 633, 635 (Tex.1973)..................................................................16

Barr v. Resolution Trust Corp.,
      837 S.W.2d 627, 628 (Tex.1992)..................................................................26

Benson v. Wanda Pet. Co.,
     468 S.W.361, 363 (Tex.1971).......................................................................27

Boerjan v Rodriguez,
      436 S.W.3d 307, 310 (Tex..2014).................................................................23

Brewer & Pritchard, P.C. v. Johnson,
     167 S.W.3d 460, 468 (Tex.App.-Houston [14th Dist.] 2005, pet. denied)....28

Brown v. Brown,
     145 S.W.3d 745, 754 (Tex. App.—Dallas 2004, pet. denied)......................22

Canutillo Indep. School Dist. v. National Union Fire Ins. Co,
      99 F.3d 695,701(5th Cir 1996)......................................................................16

City of San Antonio v. Cortes,
       468 S.W.3d 580, 586 (Tex.App.-San Antonio 2015, pet. denied)................26

Cook v. Admiral Ins. Co.,
      438 F. App'x 313 (5th Cir. 2011)..................................................................15

Cmty. Initiatives, Inc. v. Chase Bank,
      153 S.W.3d 270 (Tex. App.—El Paso 2004)................................................28

Eagle Props., Ltd. v. Scharbauer,
      807 S.W.2d 714, 721 (Tex.1990)..................................................................26


                                                    iv
Fort Brown Villas III Condo. Ass’n v. Gillenwater,
      285 S.W.3d 879. 882 (Tex.2009)..................................................................27

Gehan Homes, Ltd. v. Emplrs Mut. Cas. Co.,
     146 S.W.3d 833 (Tex. App.—Dallas 2004).............................................15,16

Gore Design Completions, Ltd. v. Hartford Fire Ins. Co.,
     538 F.3d 365 (5th Cir. 2008).........................................................................16

Guide One Elite Ins. v. Fielder Rd. Baptist Church,
      197 S.W. 3d 305, 310 (Tex. 2006)......................................................15,19,20

Gulf Chemical & Metallurgical Corp. v. Associated Metals and Minerals Corp.,
      1 F.3d 365, 367 (5th Cir. 1993)......................................................................19

Hamlett v. Holcomb,
     69 S.W.3d 816, 819 (Tex.App.-Corpus Christi 2002, no pet.)......................25

Heyden Newport Chem. Corp. v. S. Gen. Ins. Co.,
     387 S.W.2d 22, 24 (Tex.1965)............................................................14,16,20

Holloway v. Tex. Elec. Util. Constr., Ltd.,
     282 S.W.3d 207 (Tex. App.—Tyler 2009)....................................................23

J.E.M. v. Fidelity & Cas. Co.,
      928 S.W.2d 668, 671 (Tex. App.-Houston [1st Dist.] 1996, no writ).......20,21

KCM Fin. LLC v. Bradshaw,
    457 S.W.3d 70, 79 (Tex.2015)......................................................................23

King v. Dallas Fire Ins. Co.,
      85 S.W. 3d 185, 187 (Tex. 2002).............................................................15,16

Lincoln General Ins. Co. v. Aisha Learning Center,
      468 F. 3d 857,858(5th Cir. 2006)..................................................................15

Martinez v. City of San Antonio,
      40 S.W.3d 57, 591-92 (Tex.App.-San Antonio 2001, pet. denied)..............29

                                                      v
McClure v. Atterbury,
     20 S.W.3d 722, 729 (Tex. App.-- Amarillo 1999, no pet.)...........................28

McMahan v. Greenwood,
    108 S.W.3d 467, 498 (Tex.App.-Houston [14 th Dist.] 2003, pet.
    denied)......................................................................................................28,29

Michael v. Dyke,
     41 S.W.3d 746, 751-52 (Tex.App.-Corpus Christi 2001, no pet.)...........23,25

Miller v. Elliot,
      94 S.W.3d 38, 42 (Tex. App.—Tyler 2008)..................................................22

Moorehouse v. Chase Manhattan Bank,
     76 S.W.3d 608, 612 (Tex.App.-San Antonio 2002, no pet.).........................27

National Union Fire Ins., Co. v. Merch. Fast Motor Lines, Inc.,
      939 S.W.2d 139, 141 (Tex. 1997)............................................................14,15

Northfield Ins. Co. v. Loving Home Care, Inc.,
      363 F. 3d 523, 531 (5th Cir. 2004).................................................................18

Ortiz v. Collins,
       203 S.W.3d 414, 425 (Tex.App.-Houston [14th Dist.] 2006, pet. denied)....23

Quinney Elec., Inc. v. Kondos Entm’t Inc.,
     988 S.W.2d 212, 213 (Tex.1999)..................................................................26

Restaurant Teams Int'l., Inc. v. MG Securities Corp.,
      95 S.W.3d 336, 339 (Tex. App.-- Dallas 2002, no pet.)................................28

Rowan Cos. v. Griffin,
     876 F.2d 26, 28 (5th Cir.1989).......................................................................21

Scott-Burr Stores Corp. v. Wilcox,
      194 F.2d 989, 900 (5th Cir. 1952)..................................................................21

State & Cty. Mut. Fire Ins. v. Miller,
      52 S.W.3d 693, 696 (Tex.2001)....................................................................26
                                       vi
Sysco Food Servs. v. Trapnell,
      890 S.W.2d 796, 801 (Tex.1994).............................................................26,27

TemPay, Inc. v. TNT Concrete & Constru., Inc.,
     37 S.W.3d 517, 522-23 (Tex.App.-Austin 2001), pet. denied).....................28

Timpte Indus. v. Gish,
      286 S.W.3d 306, 310 (Tex.2009).............................................................23,24

Tex. R. Civ. P. 166a(i).............................................................................................23

Tex. R. Civ. P. 166c.......................................................................................23,24,25

Trinity Universal Ins. Co. v. Cowan,
       945 S.W.2d 819 (Tex. 1997).........................................................................16

Weaver v. Highlands Ins.,
     4 S.W.3d, 829 n.2 (Tex.App.-Corpus Christi 2002, no pet.)....................23,25

Zurich Am. Ins. Co. v. Nokia, Inc.,
      268 S.W.3d 487, 491 (Tex. 2008)............................................................14,15




                                                         vii
                        STATEMENT OF THE CASE
      This appeal stems from an order by the 111th District Court in Webb County

granting Appellee’s, Loya Insurance Company, Traditional and No-Evidence

Motions for Summary Judgment. (C.R. at 280) Appellants (the Hurtados) as

assignees of Karla Flores Guevara sued Defendant/ Appellee in that case, arguing

that Fred Loya breached its contract with appellee and violated various statutory

and common law duties by not providing a defense in an earlier suit. (C.R. at 33).

      In the underlying case, Appellants/Plaintiffs were injured as a result of a

motor vehicle collision. (C.R. at 32). The Hurtados sued Karla Flores Guevara, the

listed driver of the other vehicle on the police report. (C.R. at 32). Ms. Flores

Guevara was an insured of Loya Insurance Company. Defendant/Appellee Loya

Insurance Company initially assigned counsel to defend her in that lawsuit (C.R. at

32). Just prior to her deposition, Ms. Flores Guevara told that lawyer, an employee

of Loya Insurance Company that she had not been the driver of the vehicle

involved in the incident with the Hurtados. (C.R. at 134) After Loya was told by

its employee (Ms. Flores Guevara’s original counsel) that his client claimed to

have defrauded Loya, Loya denied the existence of coverage and stopped

defending Ms. Flores Guevara (C.R. at 32).       Loya’s denial was based on Ms.

Flores Guevara’s claim that her husband, an excluded driver, had been the driver of




                                         1
the vehicle involved in the wreck with the Hurtados. (C.R. at 211) Subsequently, a

judgment was granted in favor of the Hurtados, and the Hurtados accepted an

assignment of Ms. Flores Guevara’s claims against Loya Insurance Company.

(C.R. at 174-177)

      On May 17, 2016, as assignees of Karla Flores Guevara’s claims, the

Hurtados sued Appellee/Defendant Loya Insurance Company, alleging, inter alia,

that Defendant Loya Insurance Company breached their duty to defend her when it

pulled coverage and instructed her attorney withdraw from her representation.

(C.R. at 16-22)

      Appellee/Defendant Loya Insurance Company counter-sued Karla Flores

Guevara, alleging she breached her contract for insurance, fraud, and seeking a

judicial declaration that Defendant Loya Insurance Company did not owe Karla

Flores Guevara a duty to defend her in the original lawsuit. (C.R. at 32-35). After

repeatedly refusing to respond appropriately to written discovery, and after a single

deposition of a non-party, Ms. Flores Guevara, Defendant/Appellee Loya

Insurance Company filed a No-Evidence and Traditional Motion for Summary

Judgment, asking the trial court to declare that Loya did not owe a duty to defend

Karla Flores Guevara. (C.R. at123-129)        The Trial Court granted   Defendant’s

Traditional and No-Evidence Motions for Summary Judgment in a single order.

(C.R. at 280)



                                          2
                    STATEMENT OF ORAL ARGUMENT

      Appellants hereby request oral argument due to the complex nature of the

procedural background of this case.




                                      3
                               ISSUES PRESENTED

      Appellants sued Appellee for damages resulting from the failure to defend

its insured who was a covered person for claims covered by her policy.            This

appeal addresses both substantive and procedural issues. The issues, discussed in

greater detail below, relate to whether an insurance carrier, after receiving attorney-

client privileged information from an employee, should be allowed to abandon an

insured on a case involving covered claims against a covered person, and whether,

after not liking the result of the case they abandoned, will be allowed to retry the

case in subsequent proceedings.

      Did the trial court err in granting Appellee’s Traditional Motion for

Summary Judgment when assignor, a covered person under an insurance policy

issued by Appellee, owed Assignor a duty to defend because, under “The Eight

Corners Rule,” the claims against her fell within the policy coverage that Appellee

was contractually obligated to provide?

      Did the trial court err in granting Appellee’s Traditional Motion for

Summary Judgment on Declaratory Judgment when Appellee’s Request was no

longer ripe?

      Did the trial court err in granting Appellee’s No-Evidence Motion for

Summary Judgment when Appellee’s motion was conclusory?



                                           4
      Did the trial court err in granting Appellee’s No-Evidence Motion for

Summary Judgment when the alleged failure to produce evidence is related to

whether or not Ms. Flores Guevara was driving the vehicle involved in the wreck,

an issue barred by res judicata given that the original trial court entered a judgment

in the original lawsuit finding Assignor negligent?

      Did the trial court err in granting Appellee’s No-Evidence Motion for

Summary Judgment when an adequate time for discovery had not passed because

of Appellee’s repeated refusal to respond appropriately to written discovery and

proceed with depositions of fact witnesses subject to their control?




                                          5
                            STATEMENT OF FACTS

      On or about March 18, 2013, Appellants suffered injuries when they were

involved in a car wreck. (C.R. at 18) At the time of said accident, Ms. Flores

Guevara was insured by Appellee Loya Insurance Company.(C.R. at 18,183) The

police report prepared by the investigating officer identified Ms. Flores Guevara as

the driver of the vehicle that struck the vehicle in which the Appellants were riding

and did not list any passengers. (C.R. at 208-209)

      On October 30, 2014, Appellants filed suit against Ms. Flores Guevara.(C.R.

at 179-181) That suit against Ms. Flores Guevara was given cause number

2014CVT002421 in the 49th Judicial District of Web County, Texas. (C.R. at 179-

181) The lawsuit alleged that Ms. Flores Guevara was operating her vehicle

negligently and that her negligence caused Appellants’ injuries.(C.R. at 179-181)

On November 26, 2014, an answer was filed on behalf of Ms. Flores Guevara by

Francisco Martinez, staff counsel for Appellee Loya Insurance Company. (9 App.

at 106)

      On December 23, 2014, Ms. Flores Guevara answered discovery.(C.R. at

185-206) In response to Appellants request for disclosure, Ms. Flores Guevara did

not identify any potential parties or persons who could be designated as

responsible third parties.(C.R. at 185-190) Ms. Flores Guevara did not list her



                                          6
husband as a person with knowledge of relevant facts.(C.R. at 185-190)          Ms.

Flores Guevara also provided responses to Appellants interrogatories. (C.R. at 191-

196) In doing so, Ms. Flores Guevara identified herself as the driver of the vehicle

involved in the collision with Appellants. (C.R. at 193)

      On July 16, 2015, Appellant Osbaldo Hurtado was deposed by Mr.

Martinez.(C.R. at 223-273) Under oath, he identified Ms. Flores Guevara as the

driver of the vehicle involved in the wreck serving as the basis of Cause Number

2014CVT002421.(C.R. at 259,260) Ms. Flores Guevara’s deposition was

scheduled to take place on the same day, but Mr. Martinez, staff counsel for

Appellee, refused to present Ms. Flores Guevara because he claimed that if asked,

Ms. Flores Guevara would testify that her deceased husband, Rodolfo Flores, had

been the driver of the vehicle involved in the collision with Appellants, a position

that would have conflicted with her previous sworn statements. (C.R. at 260-261)

      On November 4, 2015, although no claim had ever been made against

Rodolfo Flores, and in spite of the fact that all of the sworn testimony indicated

that Ms. Flores Guevara was the driver of the vehicle involved in the collision,

Appellee sent Appellants’ counsel a letter advising that coverage had been denied.

(C.R. at 211)

      On December 28, 2015, Appellee’s staff counsel withdrew from the



                                          7
representation of Ms. Flores Guevara even though the lawsuit against her was

clearly covered by the Loya Insurance policy in question. (4 App. at 92)

Appellee’s staff counsel was not replaced by any other lawyer even though

Appellee never took the position that Ms. Flores Guevara was not covered under

the policy.

       On April 12, 2016, the 49th Judicial District of Webb County, Texas entered

a final judgment in cause number 2014CVT002421, the original lawsuit against

Ms. Flores Guevara.(C.R. at 174-177) The court determined that Ms. Flores

Guevara operated her vehicle negligently and that her negligence had proximately

caused Appellant’s injuries. (C.R. at 174) A judgment was rendered against Ms.

Flores Guevara in the amount of two hundred thousand dollars for each Appellant,

plus taxable court costs and pre-judgment and post-judgment interest. (C.R. at 174-

177)

       On May 17, 2016, Appellants, as assignees of Ms. Flores Guevara, sued

Appellant Loya Insurance Company for Negligence, Breach of Contract for

Insurance, Bad Faith/ Breach of Duty of Good Faith and Fair Dealing and

Violations of the DTPA because Appellee’s staff counsel withdrew from the

representation of Ms. Flores Guevara even though the claims against her were

clearly covered by the Loya Insurance Policy that was in question.(C.R. at 16-22)



                                         8
      On June 17, 2016, Appellee filed its Original Answer and Request for Jury

Trial. (C.R. at 23-26) On July 12, 2016, Appellee produced to Appellants’ counsel

Appellee’s Responses to Defendant’s Request for Disclosure.(12 App. at 175-180)

In its responses, Defendant identified, as people with knowledge of relevant facts,

people wholly unrelated to the case at bar.(12 App. at 175-180)

      On August 25, 2016, Appellants’ counsel emailed Appellee’s counsel and

asked that he supplement his responses to Requests for Disclosures to include

persons at Fred Loya with knowledge of the denial of coverage.(7 App. at 102)

Appellants’ counsel also asked for dates to conduct the depositions of Judy Liberto

and Francisco Martinez, two of Appellee’s employees that were involved in the

denial of Assignor’s coverage. (7 App. at 102)

      On November 15, 2016, Appellants filed their Motion to Compel and

Motion for Sanctions asking the trial court to compel Appellee to produce the

names of those people with knowledge of relevant facts in the case at bar and order

a date certain by which Appellee must present Appellee’s employees with

knowledge of relevant facts for oral depositions. (C.R. at 59-65)

      On November 30, 2016, the trial court ordered Appellee to present for

depositions,   within   the   discovery   deadline    of   January   20,   2017,   those

representatives within their control.(2 App. at 22)



                                           9
      On January 5, 2017, Appellee filed its Motion for Traditional and No-

Evidence Summary Judgment. (C.R. at 13-129)

      On January 20, 2017, Appellants filed their Motion for Continuance asking

the trial court to continue the cause from its trial date of February 20, 2017 to allow

the parties to engage in additional and necessary discovery, including the

depositions of four of Appellee’s employees who had first hand knowledge

regarding the circumstances surrounding the denial of Assignor’s claim as well as

the information regarding the denial of the claim. (C.R. at 141-143)

      On January 23, 2017, the trial court signed an order ordering that by

February 2, 2017, Appellee provide potential dates for the depositions of two

individuals identified as being currently employed by Appellee, despite having

previously ordered Appellee to present these employees within the discovery

deadline of January 20, 2017. (C.R. at 146-147)         Appellee never presented its

employees for depositions.

      On January 26, 2017, Appellants filed their motion for Summary Judgment

and Response in Opposition to Appellee’s Traditional and No-Evidence Motion for

Summary Judgment. (C.R. at 153-211)

      On February 2, 2017, the trial court heard Appellee’s Motions for Summary

Judgment and Appellants’ Motion for Continuance and took the Motions for



                                          10
Summary Judgment under advisement and denied Appellants’ Motion for

Continuance stating that enough time for discovery had passed. (2 App.70-71)

      On February 2, 2017, the trial court signed an order granting Appellee’s

Traditional and No-Evidence Motion for Summary Judgment. (C.R. at 280)

      On February 2, 2017, Appellants filed their Notice of Appeal and this

proceeding followed. (C.R. at 285)




                                        11
                          SUMMARY OF ARGUMENT

      The dispute before the trial court was whether Appellee Loya Insurance

Company had a duty to defend Ms. Flores Guevara in the original lawsuit that was

filed against her by Appellants where they alleged that Ms. Flores Guevara’s

negligence caused their injuries and other damages.

      Under the “eight corners rule,” Appellee had a duty to defend Ms. Flores

Guevara in the initial lawsuit against her. It is undisputed that Ms. Flores Guevara

was a covered person under the terms of the insurance policy issued to her by

Appellee. Appellee contracted to provide Ms. Flores Guevara with a defense in

negligence lawsuits against her.       Appellants sued Ms. Flores Guevara for

negligence. Appellee denied coverage and did not defend Ms. Flores Guevara

throughout the lawsuit. Ms. Flores Guevara sustained damages as a result of

Appellee’s breach of the duty to defend her.

      Appellee’s Traditional Motion for Summary Judgment as to Declaratory

Judgment was improper. Appellee’s request for Declaratory Judgment was no

longer ripe and without merit. The question of duty was not, at this point of the

litigation, a hypothetical question that the parties were asking a court to determine

before they committed to a certain course of conduct—be it breaching the contract




                                         12
or complying with the contract. Appellee had already chosen to breach the contract

in the original lawsuit by not providing Ms. Flores Guevara with a defense. The

subsequent judgment entered in the original lawsuit against Ms. Flores Guevara

had rendered Appellee’s request moot, and appellee had no right to declaratory

judgment even if it had filed the request at the appropriate time.

      The trial court erred in granting Appellee’s No-Evidence Motion for

Summary Judgment because No-Evidence Motions must not be conclusory.

Motions for Summary Judgment cannot generally allege that there is no evidence

to support the nonmovant’s claims. Appellee’s No-Evidence Motion for Summary

Judgment was conclusory because it did not state that there was no evidence to

support one or more specific elements of Appellants’ claims.

      The trial court erred in granting Appellee’s No-Evidence Motions for

Summary Judgment because No-Evidence Motions for Summary Judgment cannot

be filed until after the nonmovant has had “an adequate time for discovery”. At the

time that Appellee filed its motion, substantial discovery, in the form of

depositions of Appellee’s employees and appropriate responses to written

discovery were still pending.




                                          13
                                   ARGUMENT

      I.     THIS COURT SHOULD REVERSE THE TRIAL COURT’S
             RULING BECAUSE APPELLEE HAD A DUTY TO DEFEND
             MS. FLORES GUEVARA

      A.     THE EIGHT CORNERS RULE REQUIRES THAT AN
             INSURANCE COMPANY DEFEND ITS INSURED WHEN A
             LAWSUIT’S PLEADINGS FALL WITHIN THE COVERAGE
             PROVIDED IN ITS INSURANCE CONTRACT

      An insurer's duty to defend is determined by the “eight corners” rule,

looking to the factual allegations contained in the petition and the terms of the

policy. National Union Fire Ins., Co. v. Merch. Fast Motor Lines, Inc., 939 S.W.2d

139, 141 (Tex. 1997). Under the eight corners rule, an insurance company has an

absolute duty to defend its insured when a lawsuit’s pleadings “match-up”/“fall

within” the coverage provided in its insurance contract.

      The eight-corners rule provides that Texas courts may look only to the

pleadings and the insurance policy to determine whether a duty to defend exists. Id.

The allegations in the pleadings are considered in light of the policy provisions

without regard to their truth or falsity. Argonaut Sw. Ins. Co. v. Maupin, 500

S.W.2d 633, 635 (Tex.1973); Heyden Newport Chem. Corp. v. S. Gen. Ins. Co.,

387 S.W.2d 22, 24 (Tex.1965). Even if the allegations are groundless, false or

fraudulent, the insurer is obligated to defend. Zurich Am. Ins. Co. v. Nokia, Inc.,




                                         14
268 S.W.3d 487, 491 (Tex. 2008)(emphasis added). The Eight Corners Rule is not

controlled by “what the parties know or believe to be the true facts” Gehan 148

S.W.3d at 838. “A plaintiff’s factual allegations that potentially support a covered

claim is all that is needed to invoke the insurer’s duty to defend.” Guide One Elite

Ins. v. Fielder Rd. Baptist Church, 197 S.W.3d 305, 310 (Tex. 2006). Facts outside

the pleadings, even those easily ascertained, are not ordinarily material to the

determination of whether the duty to defend exists, and allegations against the

insured are liberally construed in favor of coverage. See Nat’l Union, 939 S.W.2d

at 141.

      An insurance liability policy is typically composed of two obligations: a

duty to defend and a duty to indemnify. The duty to defend is broader, than the

duty to indemnity. Cook v. Admiral Ins. Co, 438 F. App’x 313 (5 th Cir.2011).,

citing Lincoln General Ins. Co. v. Aisha Learning Center, 468 F. 3d 857,858(5th

Cir. 2006).

      Allegations against the insured are liberally construed in favor of

coverage. Nat’l Union Fire Ins. Co. v. Merchants FastMotor Lines, Inc., 939

S.W.2d 139, 141 (Tex. 1997) (emphasis added).

      “We resolve all doubts regarding the duty to defend in favor of that duty.”

King v. Dallas Fire Ins. Co., 85 S.W. 3d 185, 187 (Tex. 2002). The rule is simple:



                                         15
“When in doubt, defend.” Gore, 538 F. 3d at 369.

      The insurer must defend as long as the complaint alleges at least one claim

within the policy’s language or coverage. Canutillo Indep. School Dist. v. National

Union Fire Ins. Co, 99 F.3d 695,701(5th Cir. 1996); Gehan, 146 S.W. 3d at 838.

      Under the “Eight Corners” or “Complaint Allegation Rule”, an insurer’s

duty to defend is determined by the third-party plaintiff’s pleadings, considered in

light of the policy provisions, without regard to the truth or falsity of those

allegations. Argonaut Sw. Ins. Co. v. Maupin, 500 S.W.2d 633, 635 (Tex. 1973);

Heyden Newport Chem. Corp. v. S. Gen. Ins. Co., 387 S.W.2d 22, 24 (Tex.1965).

The rule takes its name from the fact that only two documents are ordinarily

relevant to the determination of the duty to defend: the policy and the pleadings of

the third-party claimant. King v. Dallas Fire Ins. Co., 85 S.W. 3d 185, 187, 45 Tex.

Sup. Ct. J. 1224 (Tex.2002). Facts outside the pleadings, even those easily

ascertained, are ordinarily not material to the determination.

      A plaintiff’s factual allegations that potentially support a covered claim is all

that is needed to invoke the insurer’s duty to defend, Heyden Newport Chemical

Corp., 387 S.W.2d at 26. Whereas, the facts actually established in the underlying

suit control the duty to indemnify. Trinity Universal Ins. Co., 945 S.W.2d at 821.




                                          16
       B.      THE PLEADINGS OF THE LAWSUIT AGAINST MS. FLORES
               GUEVARA FELL WITHIN THE COVERAGE PROVIDED BY
               APPELLEE TO MS. FLORES GUEVARA

      Appellants sued Ms. Flores Guevara, and only Ms. Flores Guevara for

negligence. (3 App. 79-81) Ms. Flores Guevara paid money to Appellee in

exchange for Appellee’s promise to defend her in any lawsuits alleging she was

negligent. (4 App. at 92)

      The eight-corners rule required that Defendant Loya Insurance compare only

the allegations in the suit against Ms. Flores Guevara with the provisions of Ms.

Flores Guevara’s insurance policy to determine if the allegations fit within the

policy coverage. Although no claim had ever been made against Ms. Flores

Guevara’s husband, the excluded driver, and in spite of the fact that all sworn

testimony as well as the copy of the police report indicated that assignor was the

driver of the vehicle involved in the collision, Appellee sent Appellants’ counsel a

letter advising that coverage had been denied. (3 App. at 79-81, 5 App. at 94-95, 10

App. at 110)

      As Texas law clearly states, if any allegation in the complaint is even

potentially covered by the policy, then the insurer has a duty to defend its insured.

Appellants’ complaint against Ms. Flores Guevara, clearly fell within the

provisions of the insurance policy and Appellee owed Ms. Flores Guevara a duty to



                                         17
defend.    At the time Loya Insurance Company denied Ms. Flores Guevara the

benefit of her policy, the only information they had was a privileged hearsay

statement that suggested that an excluded driver was behind the wheel at the time

of the loss. There was no legal basis for the denial.        Accordingly, this Court

should reverse the trial court’s finding.

      C.     THE TEXAS SUPREME COURT HAS NEVER EXPRESSLY
             RECOGNIZED AN EXCEPTION TO THE EIGHT CORNERS
             RULE

      The Fifth Circuit has observed that if it were to recognize an exception to the

eight corners rule, it would likely only do so “when coverage is potentially

implicated and when the extrinsic evidence goes solely to a fundamental issue of

coverage which does not overlap with the merits of or engage the truth or falsity of

any facts alleged in the underlying case.” Northfield Ins. Co. v. Loving Home Care,

Inc., 363 F. 3d 523, 531 (5th Cir. 2004). (emphasis in original).

      Here, Appellee argues that it owed no coverage or duty to defend Ms. Flores

Guevara because Ms Flores Guevara’s husband, an excluded driver under the

policy, was driving the car at the time of the wreck. However, Appellants only

sued Ms. Flores Guevara and the pleadings do not make any mention or reference

to Ms. Flores Guevara’s husband. (3 App. at 79-81) Any evidence related to Ms.

Flores Guevara’s husband driving the vehicle is extrinsic evidence that is relevant



                                            18
both to coverage and the merits and thus does not fit the exception. Further, the

Fifth Circuit Court of Appeals has rejected similar use of overlapping facts. See

Gulf Chemical & Metallurgical Corp. v. Associated Metals and Minerals Corp., 1

F.3d 365, 367 (5 th Cir. 1993).

       In Gulf Chemical one of the plaintiffs in the underlying toxic-tort action

alleged that Gulf was strictly liable because it had sold or shipped molyoxide. Id.

The petition in the lawsuit did not specifically state when Gulf had shipped

molyoxide. Id. However, the petition did allege that the plaintiffs had suffered

injures from exposure to the molyoxide between 1946 and 1990. Id. at 368.

Extrinsic evidence would have established that Gulf had not actually shipped any

molyoxide until January 20, 1986. Id. This would have been three days after the

expiration of the insurance policy that was in question. Id. at 368, 370. Although

the fact at issue concerned both the merits and coverage, the Fifth Circuit, applying

Texas law, rejected the use of extrinsic evidence under these circumstances. Id. at

371.

       When the extrinsic evidence directly contradicts the Plaintiffs’ allegations,

the Texas Supreme Court rejects the use of the evidence as an exception to the

eight corners rule because it poses a significant risk of undermining the insured’s

ability to defend itself in the underlying litigation. Guide One Elite Ins. Co. v.



                                         19
Fielder Rd. Baptist Church, 197 S.W.3d 305. Here, the evidence regarding who

was driving the vehicle is extrinsic evidence that would contradict the Hurtado’s

allegations against Ms. Flores Guevara.

      Finally, if Appellee “knew” that the allegations in Plaintiffs’s Original

Petition to be untrue, its duty was to establish such facts in defense of its insured,

rather than as an adversary in a declaratory judgment action. Heyden Newport

Chemical Corp. v. S. Gen. Ins. Co., 387 S.W.2d at 25. In this case, Loya used its

insured’s effort to defend against liability, whether true or false, as a sword instead

of a shield.   Application of the eight corners rule here conforms with the parties’

contract, and the circumstances of this case present no basis for an exception to the

eight corners rule. Based on the underlying issues, Appellants ask this Court to

reverse the trial court’s ruling and remand this case for further proceedings.

      II.      THIS COURT SHOULD REVERSE THE TRIAL COURT’S
               DECISION ON APPELLEE’S TRADITIONAL MOTION FOR
               SUMMARY JUDGMENT ON DECLARATORY JUDGMENT
               BECAUSE APPELLEE’S REQUEST WAS NO LONGER RIPE

               A.   DECLARATORY ACTIONS ARE MOOT IF ONE OF
                    THE PARTIES HAS ALREADY CHOSEN ITS COURSE
                    OF CONDUCT

      The purpose of a declaratory judgment is to obtain a clarification of one’s

rights. J.E.M. v. Fidelity & Cas. Co., 928 S.W.2d 668, 671 (Tex. App.-Houston [1 st




                                          20
Dist.] 1996, no writ). They are preventative in nature and are intended for

determining the rights of parties when a controversy has arisen, even before any

wrong has actually been committed. Id.

      A declaratory judgment action is “intended to provide a means of settling a

controversy before it ripens into a violation of the civil or criminal law, or breach

of a contractual duty.” Rowan Cos. v. Griffin, 876 F.2d 26, 28 (5 th Cir.1989).

(citing Scott-Burr Stores Corp. v. Wilcox, 194 F.2d 989, 900 (5 th Cir. 1952));

J.E.M. v. Fidelity & Cas. Co., 928 S.W.2d 668, 672 (Tex. App.-Houston [1 st Dist.]

1996, no writ) (holding a declaratory action “is intended as a means for

determining the rights of parties when a controversy has arisen, even before any

wrong has actually been committed.”)

      Chapter 12 of the Civil Practice & Remedies Code allows parties to a

contract to ask a court to declare each party’s obligations under the contract before

the question is ripe—in other words, before the question is actually a dispute

between parties before the court. A declaratory action is an exception to the

prohibition against advisory opinions because it allows courts to issue opinions on

matters not actually before the court.

      However, the question as to whether Defendant Loya Insurance had a duty

to defend was no longer hypothetical. It was the central question before the trial



                                         21
court. In the context of contract actions, a declaratory action must be brought

before a party either breaches or complies with the contract.

      B.     THEREFORE,     APPELLEE’S    REQUEST       FOR A
             DECLARATORY ACTION, AFTER IT HAD ALREADY
             C O M M ITTED TO ITS CO N D U C T, M A K ES TH E
             DECLARATORY ACTION MOOT

      Appellee chose to pull Ms. Flores Guevara’s coverage and to not defend her

in the original lawsuit against her. Appellee should have asked for declaratory

relief in the original lawsuit, before abandoning their insured. Because the question

before the trial court was whether or not Appellee owed Ms. Flores Guevara a duty

to defend her in the original lawsuit and not the one that this appeal stems from, a

declaratory action was moot and therefore must have been denied.

      III.   THE TRIAL COURT ERRED IN GRANTING APPELLEE’S
             NO EVIDENCE MOTION FOR SUMMARY JUDGMENT

      A.     A NO-EVIDENCE MOTION FOR SUMMARY JUDGMENT
             MUST NOT BE CONCLUSORY

      A no-evidence summary judgment motion may be granted only if the

Plaintiff fails to bring forth any probative evidence that raises a genuine issue of

material fact as to an essential element of the Plaintiff’s claim. Brown v. Brown,

145 S.W.3d 745, 754 (Tex. App.—Dallas 2004, pet. denied) (at Tab D); Miller v.

Elliot, 94 S.W.3d 38, 42 (Tex. App.—Tyler 2008) (at Tab E).




                                         22
      The motion must state that there is no evidence to support one or more specific

elements of a claim or defense on which the nonmovant has the burden of proof at

trial. TRCP 166a(i); KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex.2015).;

Boerjan v Rodriguez, 436 S.W.3d 307, 310 (Tex..2014).; Timpte Indus. v. Gish, 286

S.W.3d 306, 310 (Tex.2009). The motion cannot be conclusory or generally allege

that there is no evidence to support the nonmovant’s claim or defense. Timpte Indus.,

286 S.W.3d at 310; Holloway, 282 S.W.3d at 213; Ortiz v. Collins, 203 S.W.3d 414,

425 (Tex.App.-Houston [14th Dist.] 2006, pet. denied).

      The purpose of this specificity requirement is to provide the other parties with

fair notice (i.e., provide adequate information for opposing the motion and define the

issue). Timpte Indus., 286 S.W.3d at 311. When a no-evidence motion for summary

judgment does not challenge specific elements, it should be treated as a traditional

motion for summary judgment under TRCP 166c, which imposes the burden of proof

on the movant, not as a motion under TRCP 166a(i), which imposes the burden on

the nonmovant. See Michael v. Dyke, 41 S.W.3d 746, 751-52 (Tex.App.-Corpus

Christi 2001, no pet.).; Amouri v. Southwest Toyota, Inc., 20 S.W.3d 165, 168

(Tex.App.-Texakana 200, pet. denied).; Weaver v. Highlands Ins., 4 S.W.3d, 829 n.2

(Tex.App.-Corpus Christi 2002, no pet.). (when motion was ambiguous about




                                          23
whether it was no-evidence or traditional motion, court presumed it was filed as

traditional motion under TRCP 166(c).

       B.         APPELLEE’S NO-EVIDENCE MOTION                   FOR    SUMMARY
                  JUDGMENT IS CONCLUSORY

       Appellee’s No-Evidence Motion for Summary Judgment generally alleges that

there is no evidence to support Appellant’s claim of negligence against Appellee

because there is no evidence of duty. (C.R. at 128) Appellee’s motion is devoid of

any specific allegation relating to any of the other causes of action alleged by

appellants. Instead, Loya Insurance company summarily alleged in its motion that,

“Similarly, since there was no coverage for the underlying accident, and no duty to

defend, there was not breach of contract, bad faith, breach of duty of good faith and

fair dealing, or a violation of the DTPA.”

       Loya’s laundry list of causes of action lumped together by the word “similarly”

does not begin to meet the specificity requirement designed to give appellants the fair

notice required by the Rules. See Timpte at 311. The duties for each of the lumped

together cause of action are wildly different than the negligence duty and are not

similar at all.

            Appellee’s Motion states, “Plaintiff’s allege that Defendant was negligent,

however, Plaintiff’s have provided no evidence to support their claim of negligence




                                             24
against Defendant. Ms. Flores Guevara’s husband was an excluded driver under her

policy and since he was driving when the March 18, 2013 accident occurred, Loya

owed no coverage or duty to defend Ms. Flores Guevara. Therefore, there was no

negligence on the part of Defendant Loya.” (C.R. at 128)

      Because defendant’s motion for summary judgment does not meet the

specificity requirements, and failed to give appellants fair notice, Appellee’s No-

Evidence Motion for Summary Judgment should have been treated by the trial court

as a traditional motion for summary judgment under TRCP 166a(c), imposing the

burden of proof on Appellee rather than on Appellants. See Michael v. Dyke, 41

S.W.3d 746, 751-52 (Tex.App.-Corpus Christi 2001, no pet.); Amouri v. Southwest

Toyota, Inc., 20 S.W.3d 165, 168 (Tex.App.-Texarkana 2000, pet. denied); Weaver v.

Highlands Ins., 4 S.W.3d 826, 829 n.2 (Tex.App.-Houston [1st Dist.] 1999, no pet.);

see also Hamlett v. Holcomb, 69 S.W.3d 816, 819 (Tex.App.-Corpus Christi 2002, no

pet.) (when motion was ambiguous about whether it was no-evidence or traditional

motion, court presumed it was filed as traditional motion under TRCP 166a(c).

      C.     WHETHER OR NOT ASSIGNOR WAS DRIVING IS
             IRRELEVANT AND BARRED BY RES JUDICATA

      Within the general doctrine of res judicata, there are two principal categories:

(1) claim preclusion (also known as res judicata and (2) issue preclusion (also known




                                         25
as collateral estoppel). Barr v. Resolution Trust Corp., 837 S.W.2d 627, 628

(Tex.1992). Collateral estoppel or issue preclusion, prevents a party from re-litigating

a particular fact issue that the party already litigated and lost in an earlier suit. State &

Cty. Mut. Fire Ins. v. Miller, 52 S.W.3d 693, 696 (Tex.2001).; Quinney Elec., Inc. v.

Kondos Entm’t Inc., 988 S.W.2d 212, 213 (Tex.1999).; Barr v. Resolution Trust

Corp., 837 S.W.2d 627, 628 (Tex. 1992).; City of San Antonio v. Cortes, 468 S.W.3d

580, 586 (Tex.App.-San Antonio 2015, pet. denied). To invoke collateral estoppel, a

party must establish (1) the same facts sought to be litigated in the second suit were

fully litigated in the first suit, (2) those facts were essential to the judgment in the first

suit, and (3) the parties were cast as adversaries in the first suit. Sysco Food Servs. v.

Trapnell, 890 S.W.2d 796, 801 (Tex.1994).; Eagle Props., Ltd. v. Scharbauer, 807

S.W.2d 714, 721 (Tex.1990).

       Here, the issue of whether or not Assignor was driving has been fully and

fairly litigated in the original lawsuit. Appellants attached, as Exhibit B of their

Motion for Summary Judgment and Response in Opposition to Appellee’s

Traditional and No-Evidence Motion for Summary Judgment, a copy of the Final

Judgment that was signed and entered in the 49th Judicial District of Webb County,

Texas in Cause Number 2014CVT00241 which found Ms. Flores Guevara negligent

and that her negligence proximately caused Appellants injuries. While Appellee may



                                             26
attempt to argue that it was not a party in the original lawsuit, collateral estoppel bars

a party from re-litigating an issue resolved in an earlier suit against that same party or

someone in privity with that party, Benson v. Wanda Pet. Co., 468 S.W.361, 363

(Tex.1971).; Sysco Food 890 S.W.2d at 802-03. When Ms. Flores Guevara purchased

her insurance policy from Appellee, Appellee contracted to defend Ms Flores.

Guevara in negligence lawsuits against her. Because Appellee was in privity with Ms.

Flores Guevara and Ms. Flores Guevara was a party to the original lawsuit, collateral

estoppel bars Appellee from re-litigating the issue of whether or not Ms. Flores

Guevara was the driver of the vehicle. Therefore, the trial court erred in granting

appellee’s summary judgment for failure to produce evidence that Ms. Flores

Guevara was in fact driving the car at the time of the accident on March 18, 2013,

when that issue had been previously decided and is irrelevant to the issues presented

by this case.

       D.       ADEQUATE TIME FOR DISCOVERY HAD NOT PASSED

       A no-evidence motion for summary judgment cannot be filed until after the

nonmovant has had “adequate time for discovery.” TRCP 166a(i); Fort Brown Villas

III Condo. Ass’n v. Gillenwater, 285 S.W.3d 879. 882 (Tex.2009).; Moorehouse v.

Chase Manhattan Bank, 76 S.W.3d 608, 612 (Tex.App.-San Antonio 2002, no pet.).

Although a trial court has broad discretion to deny a request for continuance, a no -



                                            27
evidence summary judgment can be reversed on the ground that the nonmovant did

not have adequate time for discovery. See Brewer & Pritchard, P.C. v. Johnson, 167

S.W.3d 460, 468 (Tex.App.-Houston [14th Dist.] 2005, pet. denied).; TemPay, Inc. v.

TNT Concrete & Constru., Inc., 37 S.W.3d 517, 522-23 (Tex.App.-Austin 2001), pet.

denied).

      Whether a nonmovant has had an adequate time is determined on a case by

case basis. See McClure v. Atterbury, 20 S.W.3d 722, 729 (Tex. App.-- Amarillo

1999, no pet.). Courts examine the following factors when determining whether an

adequate time for discovery has passed: (1) the nature of the case; (2) the nature of

the evidence necessary to controvert the no-evidence motion; (3) the length of time

the case has been active; (4) the length of time the no evidence motion has been on

file; and (5) the amount of discovery already conducted. See Restaurant Teams Int'l.,

Inc. v. MG Securities Corp., 95 S.W.3d 336, 339 (Tex. App.-- Dallas 2002, no pet.).

      The following are examples of when time for discovery has been considered

adequate: 1.) Three-year old case in which discovery had been pursued for a year and

a half and the most important witness had been deposed. Community Initiatives, 153

S.W.3d at 278-79.; 2.)Twenty-eight-month-old case in which the plaintiff had one

year to develop its case outside of a bankruptcy stay and had already received a

continuance. McMahan v. Greenwood, 108 S.W.3d 467, 498 (Tex.App.-Houston



                                         28
[14th Dist.] 2003, pet. Denied). and 3.) Five year old case in which the plaintiff did not

comply with the scheduling order it requested. Martinez v. City of San Antonio, 40

S.W.3d 57, 591-92 (Tex.App.-San Antonio 2001, pet. denied).

      Here, at the time of Appellee’s No-Evidence Motion for Summary Judgment,

this case had only been active for eight months. Further, no continuance had been

requested by either party. Pursuant to the Pre-Trial Guideline Order, the discovery

deadline was January 20, 2017.

      The No-Evidence motion for summary Judgment was filed on January5, 2017,

prior to the end of the discovery period. At the time of the filing, discovery in this

matter was substantially incomplete. Specifically, Appellee had failed to present for

depositions those employees which were within its control that had knowledge of the

denial of Assignor’s coverage, despite the fact that Appellee had been twice ordered

by the trial court to present them. Further, Appellee conveniently gave Appellants’s

counsel temporary available dates for these depositions for mid/late February or

March.

      The short amount of time along with Appellee’s continued obstruction of

evidence was insufficient to allow for all of the needed depositions. Appellants’

ongoing discovery efforts since the filing of this action show they did not sit idly




                                            29
while valuable discovery time had elapsed. Appellee simply failed to comply with the

multiple court orders ordering it to present its employees for deposition.

      Therefore, Appellee’s No-Evidence Motion for Summary Judgment should be

reversed on the ground that Appellant did not have adequate time for discovery.




                                           30
                                    PRAYER

      Appellants pray that this Court, REVERSE the trial court’s granting of

Appellee’s Traditional Motion for Summary Judgment and REMAND to the trial

court for further proceedings. Appellants further pray that this Court REVERSE the

trial court’s granting of Appellee’s No-Evidence Motion for Summary Judgment and

REMAND to the trial court for further proceedings.

                                      Respectfully submitted,

                                      THE GREEN LAW FIRM, P.C.
                                      34 S. Coria
                                      Brownsville, Texas 78520
                                      Telephone : (956) 542-7000
                                      Facsimile : (956) 542-7026
                                      jorge@thegreenlawfirmpc.com
                                      letygarza@thegreenlawfirmpc.com

                                      BY: /s/ Jorge A. Green
                                             JORGE A. GREEN
                                             State Bar No. 24038023
                                             LETICIA GARZA
                                             State Bar No. 24092405

                                      ATTORNEYS FOR APPELLANTS




                                        31
                          CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Brief of Appellee was
served by electronic service on this 20th day of July, 2017, upon the following
counsel of record:

                               John R. Lyde
              VIDAURRI, LYDE, RODRIGUEZ & HAYNES, LLP
                            202 N. 10 th Avenue
                          Edinburg, Texas 78541
                        (956) 381-6602 Telephone
                            (956) 381-0725 Fax
                          rlyde@vlrhlaw.com

                                               BY: /s/ Jorge A. Green
                                                     JORGE A. GREEN


                       CERTIFICATE OF COMPLIANCE

      Pursuant to Rule 9.4(i)(3), undersigned counsel hereby certifies that, using

WORD PERFECT Count Feature, the foregoing brief was 6,016 words.


                                               BY: /s/ Jorge A. Green
                                                      JORGE A. GREEN




                                          32
                            NO. 04-17-00070-CV

      OSBALDO HURTADO AVALOS AND ANTONIO HURTADO, AS
            ASSIGNEES OF KARLA FLORES GUEVARA,

                                 Appellants,

                                      v.

                      LOYA INSURANCE COMPANY,

                             Appellee
__________________________________________________________________

                        APPELLANTS’ APPENDIX
______________________________________________________________________________

                           LIST OF DOCUMENTS

1.   The trial court’s order granting Defendant Loya Insurance Company’s
     Traditional and No-Evidence Motion for Summary Judgment dated
     February 2, 2017.

2.   Reporter’s Record Volumes 1-4 in Trial Court Cause No. 2016-CVT-
     001431-D2.

3.   Plaintiffs’ Original Petition in Trial Court Cause No. 2014CVT002421
     dated October 30, 2014.

4.   Ms. Guevara’s Declaration Page of her Texas Insurance Policy Issued by
     Appellee Loya Insurance Company.

5.   Copy of Texas Peace Officer’s Crash Report for the car wreck that occurred
     on March 18, 2013 between Osbaldo Hurtado, Antonio Hurtado and Ms.
     Guevara.

6.   Signed Final Judgment entered in Cause No. 2014CVT002421 dated April
     11, 2016.
7.    E-mail correspondence, dated August 25, 2016, between Appellants’
      attorney and Appellee’s attorney requesting that Appellee supplement its
      responses to Requests for Disclosures and dates to conduct the depositions
      of Judy Liberto and Francisco Martinez.

8.    E-mail correspondence, dated January 31, 2017, between Appellants’
      attorney’s staff and Appellee’s attorney requesting that Appellee
      supplement its responses to Requests for Disclosures and include a copy of
      the insurance policy.

9.    Defendant’s Original Answer in Trial Court Cause No. 2014CVT002421
      dated November 26, 2014.

10.   Appellee Loya Insurance Company’s letter to Appellants’ counsel
      withdrawing Ms. Flores Guevara’s representation of counsel in Trial Court
      Cause No. 2014CVT002421.

11.   Appellee Loya Insurance Company’s Discovery Responses in Trial Court
      Cause No. 2014CVT002421.

12.   Appellee Loya Insurance Company’s Responses to Appellants’ Requests for
      Disclosure in Trial Court Cause No. 2016-CVT-001431-D2.


                                              Respectfully submitted,
                                              THE GREEN LAW FIRM, P.C.
                                              34 S. Coria
                                              Brownsville, Texas 78520
                                              Telephone : (956) 542-7000
                                              Facsimile : (956) 542-7026
                                              jorge@thegreenlawfirmpc.com
                                              letygarza@thegreenlawfirmpc.com
                                              BY: /s/ Jorge A. Green
                                                    JORGE A. GREEN
                                                    State Bar No. 24038023
                                                    LETICIA GARZA
                                                    State Bar No. 24092405

                                              ATTORNEYS FOR APPELLANTS
TAB 1
TAB 2
                                                            1

1                         REPORTER'S RECORD
                        VOLUME 1 OF 4 VOLUMES
2             TRIAL COURT CAUSE NO. 2016-CVT-001431-D2
                      APPEAL NO. 04-17-00070-CV
3
     OSBALDO HURTADO AVALOS       ) IN THE DISTRICT COURT
4    AND ANTONIO HURTADO AS       )
     ASSIGNEES OF KARLA FLORES    )
5    GUEVARA,                     )
                   PLAINTIFFS,    )
6                                 ) WEBB COUNTY, TEXAS
                                  )
7    VS.                          )
                                  )
8    LOYA INSURANCE COMPANY,      )
                    DEFENDANT.    ) 111TH JUDICIAL DISTRICT
9

10

11

12

13
                  *******************************
14                         MASTER INDEX
                  *******************************
15

16

17

18

19

20

21

22

23                VICENTE MENDOZA, TEXAS CSR #6918
           OFFICIAL COURT REPORTER - 111TH DISTRICT COURT
24                 1110 VICTORIA STREET, Suite 301
                         LAREDO, TEXAS 78040
25           OFFICE (956) 523-4229    FAX (956) 523-5088
                                                  2

1                         A P P E A R A N C E S

2    FOR THE PLAINTIFFS:

3       SBOT NO. 24092405
        Leticia "Lety" Garza
4       SBOT NO. 24038023
        Jorge A. Green
5       The Green Law Firm, P.C.
        34 S. Coria
6       Brownsville, Texas 78520
        (956) 542-7000 PHONE
7       (956) 542-7026 FAX

8    FOR THE DEFENDANT:

9       SBOT NO. 12712700
        John R. Lyde
10      Vidaurri, Lyde, Rodriguez & Haynes, LLP
        202 N. 10th Avenue
11      Edinburg, Texas 78541
        (956) 381-6602 PHONE
12      (956) 381-0725 FAX

13

14

15

16

17

18

19

20

21

22

23

24

25
                                                      3

1                        CHRONOLOGICAL INDEX

2    VOLUME 1 OF 4 - Master Index

3    VOLUME 2 OF 4
     NOVEMBER 30, 2016                         PAGE
4
     Style of the Case -------------------       1
5    Appearances -------------------------       2
     Chronological Index -----------------       3
6    Proceedings Started -----------------       4
     Proceedings Concluded ---------------      13
7    Court Reporter's Certificate --------      14

8    VOLUME 3 OF 4
     JANUARY 19, 2017                          PAGE
9
     Style of the Case -------------------       1
10   Appearances -------------------------       2
     Chronological Index -----------------       3
11   Proceedings Started -----------------       4
     Proceedings Concluded ---------------      14
12   Court Reporter's Certificate --------      15

13   VOLUME 4 OF 4
     FEBRUARY 2, 2017                          PAGE
14
     Style of the Case -------------------       1
15   Appearances -------------------------       2
     Chronological Index -----------------       3
16   Proceedings Started -----------------       4
     Proceedings Concluded ---------------      27
17   Court Reporter's Certificate --------      28

18
     *-*-*-*-*-*-*
19

20

21

22

23

24

25
                                                             4

1    THE STATE OF TEXAS      )

2    COUNTY OF WEBB          )

3

4                    I, Vicente Mendoza, Official Court
     Reporter for the 111th District Court, Webb County,
5    State of Texas, do hereby certify that the above and
     foregoing contains a true and correct transcription
6    of all portions of evidence and other proceedings
     requested in writing by counsel for the parties to be
7    included in this volume of the Reporter's Record, in
     the above-styled and numbered cause, all of which
8    occurred in open court or in chambers and were
     reported by me.
9
                    I further certify that the Reporter's
10   Record of the proceedings truly and correctly
     reflects the exhibits, if any, admitted by the
11   respective parties.

12                  I further certify that the total cost
     for the preparation of this Reporter's Record is
13   $446.50 and was paid/will be paid by The Green Law
     Firm, P.C. by Leticia Garza.
14

15                  WITNESS MY OFFICIAL HAND this the 9th
     day of February, 2017.
16

17

18

19

20

21

22               _________________________________
                 Vicente Mendoza, Texas CSR #6918
23                  Expiration Date: 12/31/2018
          Official Court Reporter - 111th District Court
24                1110 Victoria Street, Suite 301
                         Laredo, Texas 78040
25            Office (956) 523-4229 Fax (956)523-5088
                                                              1

1                         REPORTER'S RECORD
                        VOLUME 2 OF 4 VOLUMES
2             TRIAL COURT CAUSE NO. 2016-CVT-001431-D2
                      APPEAL NO. 04-17-00070-CV
3
     OSBALDO HURTADO AVALOS        ) IN THE DISTRICT COURT
4    AND ANTONIO HURTADO AS        )
     ASSIGNEES OF KARLA FLORES     )
5    GUEVARA,                      )
                   PLAINTIFFS,     )
6                                  ) WEBB COUNTY, TEXAS
                                   )
7    VS.                           )
                                   )
8    LOYA INSURANCE COMPANY,       )
                    DEFENDANT.     ) 111TH JUDICIAL DISTRICT
9

10
                  *******************************
11                       November 30, 2016
                  *******************************
12

13                    On the 30th day of November 2016, the

14   following proceedings came on to be heard in the

15   above-entitled and numbered cause before the Honorable

16   MONICA Z. NOTZON, Judge presiding, held in Laredo, Webb

17   County, Texas:

18                    Proceedings reported by Computerized

19   Stenotype Machine; Reporter's Record produced by

20   Computer-Assisted Transcription.

21

22

23                VICENTE MENDOZA, TEXAS CSR #6918
           OFFICIAL COURT REPORTER - 111TH DISTRICT COURT
24                 1110 VICTORIA STREET, Suite 301
                         LAREDO, TEXAS 78040
25           OFFICE (956) 523-4229    FAX (956) 523-5088
                                                  2

1                         A P P E A R A N C E S

2    FOR THE PLAINTIFFS:

3       SBOT NO. 24092405
        Leticia "Lety" Garza
4       The Green Law Firm, P.C.
        34 S. Coria
5       Brownsville, Texas 78520
        (956) 542-7000 PHONE
6       (956) 542-7026 FAX

7    FOR THE DEFENDANT:

8       SBOT NO. 12712700
        John R. Lyde
9       Vidaurri, Lyde, Rodriguez & Haynes, LLP
        202 N. 10th Avenue
10      Edinburg, Texas 78541
        (956) 381-6602 PHONE
11      (956) 381-0725 FAX

12

13

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25
                                                      3

1                        CHRONOLOGICAL INDEX

2    NOVEMBER 30, 2016                         PAGE

3    Style of the Case -------------------       1

4    Appearances -------------------------       2

5    Chronological Index -----------------       3

6    Proceedings Started -----------------       4

7    Proceedings Concluded ---------------      13

8    Court Reporter's Certificate --------      14

9
     *-*-*-*-*-*-*
10

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                                                                    4

1                               PROCEEDINGS

2                      WHEREUPON the following proceedings

3    were had in Open Court, before Court, to-wit:

4                      THE BAILIFF:     All rise.   Please come

5    to order.     The 111th District Court is now in

6    session.     The Honorable Judge Monica Notzon

7    presiding.     (November 30, 2016 - Time:      9:07 a.m.)

8                      THE COURT:     Good morning everyone.

9    Please be seated.

10                     (Whereupon other matters on the

11                     Court's docket were heard before the

12                     Court)

13                     THE COURT:     Avalos and Hurtado versus

14   Loya Insurance, 2016-CVT-001431-D2.

15                     MR. LYDE:    Rick Lyde, Your Honor, on

16   behalf of Loya.

17                     MS. GARZA:     Lety Garza here for Jorge

18   Green on behalf of the Assignees.

19                     THE COURT:     All right.    Good morning.

20                     MR. LYDE:    Good morning, Your Honor.

21                     THE COURT:     All right.    What's going

22   on, Counsel?

23                     MR. LYDE:    We have two motions this

24   morning, Your Honor.       One is our motion for leave to

25   designate responsible third party; and, the second is
                                                                       5

1    their motion to compel.

2                         MS. GARZA:     On the first one we did

3    file an objection to the motion for leave, Your

4    Honor.

5                         MR. LYDE:     Yes.   That's right.

6                         THE COURT:     All right.   Let's take the

7    motion for leave first.

8                         MR. LYDE:     Very good, Your Honor.

9    Your Honor, this case originally involves an

10   automobile accident that occurred back in March

11   of 2013.     The responsible third party that we are

12   requesting to be allowed to designate is a Ms.

13   Guevara.     Back at that time she was a Loya automobile

14   policy insured.        Okay?     But, her policy had the

15   exclusion that her husband was excluded as an

16   insured.     Okay?

17                        So, what happens is that back in March

18   of 2013, the Guevara vehicle has an automobile

19   accident with the Hurtados, who are the Plaintiffs in

20   this case.     Okay?     Originally, Ms. Guevara tells Loya,

21   oh, I was driving, which means of course there's

22   potential insurance.           So, the claim is made by the

23   Hurtados against Ms. Guevara, a lawsuit is filed,

24   discovery is done, and the case is proceeding.             But,

25   right before Ms. Guevara is set to be deposed she
                                                                  6

1    tells her attorney at that time, she says, okay, I've

2    got to confess I wasn't driving.      It was my husband.

3    Okay?

4                    And what happened was that he entered

5    into this scheme after the accident with the Hurtados

6    to say that he [sic] was driving so that there be

7    insurance coverage, because otherwise --

8                    THE COURT:     To say is that she was

9    driving?

10                   MR. LYDE:     To say that she was

11   driving.   Correct.     She shows up at the scene.   She

12   agrees to go along with that.      All right?   And that's

13   the way the police report reads, that she's the

14   driver, and we have that down cold, Your Honor, by

15   the way.

16                   First of all, we have a recorded

17   statement from Ms. Guevara that says all of that.

18   Then in September I took her deposition, and we got

19   all of that, that her husband agreed to this with the

20   Hurtados, that she originally said she was driving.

21   It's all in the deposition.      And in fact, Your Honor,

22   if the Court will look at our motion for leave, we've

23   attached copies of the depo pages.      So, all of that

24   is proven up.   Okay?     Anyway, as soon as Loya hears

25   that, they withdraw the Defense for Ms. Guevara in
                                                                7

1    the case, as far as the Hurtados are concerned, and

2    they deny coverage.

3                    Then the Hurtado's go on to take

4    summary judgment against Ms. Guevara in the

5    underlying case, each for $200,000, and they

6    convinced her, after they take these summary

7    judgments, to assign any rights that she may have

8    against Loya for wrongful denial of coverage.

9                    So, that's what this case is.     It is,

10   basically, that the Hurtado's are trying to use Ms.

11   Guevara's alleged claims against Loya for this

12   wrongful denial of coverage to get their money.

13   That's what is going on.

14                   THE COURT:    Okay.   So, tell me about

15   your motion for leave.

16                   MR. LYDE:    We, basically, put

17   everything that I've just told the Court in our

18   motion, okay?   Again, we're trying to designate Ms.

19   Guevara as the responsible third party.

20                   The other side has raised three

21   objections, and one of those objections -- quite

22   honestly I don't understand -- but, they're saying

23   that she's not, Ms. Guevara, that she can't be

24   individually liable in this case.     First of all I

25   disagree with that completely based on the facts.
                                                                8

1                    THE COURT:    Well, if she wasn't

2    driving, how is she a responsible third party?

3                    MR. LYDE:    Because of a the collusion

4    and the fraud that went into trying to generate the

5    excess coverage.

6                    THE COURT:    Hum.    All right.   Okay.

7                    MR. LYDE:    Okay.    So, anyway, the

8    stuff about her being individually responsible, I

9    don't know where they are coming from with that.

10   Under Section 33 we have to show that the potential

11   responsible third party caused or contributed to

12   cause the damages being claimed.

13                   THE COURT:    All right.

14                   MR. LYDE:    That's what we have to

15   show.   Obviously, we've pled enough facts to indicate

16   that in here.

17                   THE COURT:    Well, you did plead enough

18   facts, but I don't know if it's indicative of the

19   responsible third party motion or I don't know if it

20   supports that motion; but, let me hear you on your

21   objections, Counsel?

22                   MS. GARZA:    Okay.    Your Honor, in that

23   first lawsuit -- our position is that that first

24   lawsuit has been completely disposed of by a court

25   and we've taken a judgment.    And so, the idea that
                                                               9

1    our clients colluded to defraud or anything, that is

2    not related to this in any way, shape, or form.

3                      In the first lawsuit what we had was

4    the 8-corners doctrine basically saying that there

5    was a complaint against Ms. Guevara, and her husband

6    was never addressed to in that complaint, and we had

7    an insurance policy that clearly covered that

8    complaint.    They withdrew their representation of Ms.

9    Guevara in that first lawsuit when the policy was

10   clearly attached to the complaint.

11                     THE COURT:   But it sounds like they

12   have good grounds.

13                     MS. GARZA:   Except for the fact that

14   we also have signed discovery responses from her that

15   are verified where she stated that she was the driver

16   of the vehicle.

17                     THE COURT:   Okay.   But you have a

18   client that's obviously lied, at least once, to both

19   of you.

20                     MS. GARZA:   It's our position that the

21   lawsuit that we are here for today is completely

22   independent from the damages sustained in that car

23   accident.    We are here because of the fact that they

24   did not apply the 8 corners doctrine and withdrew

25   coverage from that.
                                                                  10

1                      THE COURT:    All right.    So, what are

2    your objections to the motion for leave to designate

3    Ms. Guevara as a responsible third party?

4                      MS. GARZA:    Our objection is

5    that she's not a responsible third party because --

6    well one, we've said that they didn't plead enough

7    facts, but that the facts that, hum -- anything that

8    she said or did in response to that first accident is

9    completely unrelated.    That's been disposed of by a

10   court.   We have a signed judgment that already

11   addressed that.

12                     THE COURT:    So, if the accident has

13   been resolved, in other words, there's a judgment,

14   what is the lawsuit that's pending now here?

15                     MS. GARZA:    It is for, Your Honor,

16   negligence -- if you give me one second (reviewing

17   cell phone) I can --

18                     MR. LYDE:    Again, they have been

19   assigned, the Hurtados, they have been assigned the

20   potential claims of Ms. Guevara.

21                     THE COURT:    But is it for denial of

22   coverage?

23                     MR. LYDE:    Yes.   Yes.   They've got

24   negligence, breach of contract, DTPA.

25                     THE COURT:    Then your motion is
                                                                  11

1    different.   I thought we were still in the original

2    accident.

3                      MR. LYDE:    I'm so sorry, Judge.      I

4    should have made myself clear.

5                      MS. GARZA:    No, Your Honor.   That

6    accident has been disposed of.      In fact, we have a

7    signed final judgment on that first accident, which

8    is why we continue to say that she is not a

9    responsible third party in this situation.

10                     THE COURT:    All right.   But, that

11   changes the nature of the motion then.       All right.

12   So, what are your legal objections then?

13                     MS. GARZA:    (Reviewing cell phone)

14   That they didn't plead enough facts to state that she

15   is a responsible third party, that she is not

16   independently liable for this accident; but, if we

17   tell the jury to apportion responsibility to her,

18   it's wholly unrelated because that was related to the

19   first accident.

20                     THE COURT:    I'm granting it, Counsel.

21                     MR. LYDE:    Thank you, Your Honor.

22                     THE COURT:    I need your order.

23                     MR. LYDE:    Your Honor, we will have

24   that for the Court this afternoon.

25                     THE COURT:    Oh, I'm looking at it
                                                               12

1    right here.

2                    MR. LYDE:    Oh, thank goodness.

3                    THE COURT:    All right.   What else do

4    we have?

5                    MR. LYDE:    We have their motion to

6    compel to compel against us, Your Honor.

7                    MS. GARZA:    And I've looked through

8    our file, and it seems like Mr. Lyde's office has

9    produced already some responses to the requests for

10   disclosure.   The issues that we were having was that

11   he produce the names that were related to the first

12   accident and not the name of the insurance adjuster

13   or any other employees or agents of defendant.

14                   I think at this point he already has

15   that.   The only thing that we would respectfully ask

16   the Court is to order Mr. Lyde to produce them for

17   deposition within 30-45 days because we have a

18   February trial date coming up.

19                   MR. LYDE:    Your Honor, we have no

20   problem with producing them before the discovery

21   deadline; and, just so that the Court is aware, there

22   are only two that are still with the company.      The

23   ex-employees, obviously, I don't have any -- one of

24   them retired -- I don't have any control over them,

25   but I'll be happy to contact them if I can; but, I
                                                               13

1    cannot make a representation about those folks.      My

2    two, of course, I will produce before the discovery

3    deadline if they want to take them.

4                   THE COURT:    That's ordered then.

5    Okay.

6                   MR. LYDE:    Thank you, Your Honor.

7                   MS. GARZA:    Thank you, Your Honor.

8    May I be excused?

9                   THE COURT:    Yes.

10                  (Whereupon other matters on the

11                  Court's docket were heard before the

12                  Court)

13

14                        *-*-*-*-*-*-*-*-*-*

15                       PROCEEDINGS CONCLUDED

16                        *-*-*-*-*-*-*-*-*-*

17

18

19

20

21

22

23

24

25
                                                           14

1    THE STATE OF TEXAS      )

2    COUNTY OF WEBB          )

3

4                    I, Vicente Mendoza, Official Court
     Reporter for the 111th District Court, Webb County,
5    State of Texas, do hereby certify that the above and
     foregoing contains a true and correct transcription
6    of all portions of evidence and other proceedings
     requested in writing by counsel for the parties to be
7    included in this volume of the Reporter's Record, in
     the above-styled and numbered cause, all of which
8    occurred in open court or in chambers and were
     reported by me.
9
                    I further certify that the Reporter's
10   Record of the proceedings truly and correctly
     reflects the exhibits, if any, admitted by the
11   respective parties.

12                  I further certify that the total cost
     for the preparation of this Reporter's Record is $See
13   Original printed transcript, Volume 1 and was
     paid/will be paid by The Green Law Firm, P.C. by
14   Leticia Garza.

15
                    WITNESS MY OFFICIAL HAND this the 9th
16   day of February, 2017.

17

18

19

20

21

22               _________________________________
                 Vicente Mendoza, Texas CSR #6918
23                  Expiration Date: 12/31/2018
          Official Court Reporter - 111th District Court
24                1110 Victoria Street, Suite 301
                         Laredo, Texas 78040
25            Office (956) 523-4229 Fax (956)523-5088
                                                                                                                                         1

             #            542-7026 [1] - 2:6          automobile [3] - 5:10,      concerned [1] - 7:1        defendant [1] - 12:13
                                                       5:13, 5:18                 CONCLUDED [1] -            Defense [1] - 6:25
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                                                      Avalos [1] - 4:13           Concluded [1] - 3:7        denial [3] - 7:8, 7:12,
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                          78520 [1] - 2:5             aware [1] - 12:21           contact [1] - 12:25        deny [1] - 7:2
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                                                      BAILIFF [1] - 4:4           contributed [1] - 8:11      6:21, 12:17
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                                                      breach [1] - 10:24          copies [1] - 6:23          different [1] - 11:1
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                                                                                  corners [1] - 9:24         disclosure [1] - 12:10
1 [2] - 3:3, 14:13        956 [7] - 1:25, 2:5, 2:6,
10th [1] - 2:9             2:10, 2:11, 14:25
                                                                  C               correct [2] - 6:11, 14:5   discovery [4] - 5:24,
                                                                                  correctly [1] - 14:10       9:14, 12:20, 13:2
1110 [2] - 1:24, 14:24    956)523-5088 [1] -          cannot [1] - 13:1           cost [1] - 14:12           disposed [3] - 8:24,
111TH [2] - 1:8, 1:23      14:25                      car [1] - 9:22              Counsel [3] - 4:22,         10:9, 11:6
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 14:23                    9th [1] - 14:15              5:24, 7:1, 7:5, 7:9,       counsel [1] - 14:6          1:8, 1:23
12/31/2018 [1] - 14:23                                 7:24                       COUNTY [2] - 1:6,          District [3] - 4:5, 14:4,
12712700 [1] - 2:8                    A               Case [1] - 3:3               14:2                       14:23
13 [1] - 3:7                                          CAUSE [1] - 1:2             County [2] - 1:17, 14:4    docket [2] - 4:11,
14 [1] - 3:8              a.m. [1] - 4:7              caused [1] - 8:11           course [2] - 5:21, 13:2     13:11
                          above-entitled [1] -        cell [2] - 10:17, 11:13     Court [15] - 3:8, 4:3,     doctrine [2] - 9:4, 9:24
             2             1:15                       Certificate [1] - 3:8        4:5, 4:12, 6:22, 7:17,    done [1] - 5:24
                          above-styled [1] -          certify [3] - 14:5, 14:9,    11:24, 12:16, 12:21,      down [1] - 6:14
2 [2] - 1:1, 3:4           14:7                        14:12                       13:12, 14:4, 14:4,        driver [2] - 6:14, 9:15
2013 [2] - 5:11, 5:18     accident [12] - 5:10,       chambers [1] - 14:8          14:23                     driving [7] - 5:21, 6:2,
2016 [4] - 1:11, 1:13,     5:19, 6:5, 9:23, 10:8,     changes [1] - 11:11         COURT [28] - 1:2, 1:3,      6:6, 6:9, 6:11, 6:20,
 3:2, 4:7                  10:12, 11:2, 11:6,
                                                      CHRONOLOGICAL                1:23, 4:8, 4:13, 4:19,     8:2
2016-CVT-001431-D          11:7, 11:16, 11:19,
                                                       [1] - 3:1                   4:21, 5:6, 6:8, 7:14,     DTPA [1] - 10:24
 2 [2] - 1:2, 4:14         12:12
                                                      Chronological [1] -          8:1, 8:6, 8:13, 8:17,
2017 [1] - 14:16          addressed [2] - 9:6,
                                                       3:5
202 [1] - 2:9              10:11                                                   9:11, 9:17, 10:1,                     E
                                                      claim [1] - 5:22             10:12, 10:21, 10:25,
24092405 [1] - 2:3        adjuster [1] - 12:12
                                                      claimed [1] - 8:12           11:10, 11:20, 11:22,      Edinburg [1] - 2:10
                          admitted [1] - 14:10
                                                      claims [2] - 7:11,           11:25, 12:3, 13:4,        employees [2] -
             3            afternoon [1] - 11:24
                                                       10:20                       13:9                       12:13, 12:23
                          agents [1] - 12:13
                                                      clear [1] - 11:4            court [3] - 8:24, 10:10,   entered [1] - 6:4
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                                                      clearly [2] - 9:7, 9:10      14:8                      entitled [1] - 1:15
30 [3] - 1:11, 3:2, 4:7   agrees [1] - 6:12
                                                      client [1] - 9:18           Court's [2] - 4:11,        evidence [1] - 14:6
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                                                      clients [1] - 9:1            13:11                     ex [1] - 12:23
301 [2] - 1:24, 14:24     allowed [1] - 5:12
                                                      cold [1] - 6:14             coverage [7] - 6:7,        ex-employees [1] -
30th [1] - 1:13           AND [1] - 1:4
                                                      colluded [1] - 9:1           7:2, 7:8, 7:12, 8:5,       12:23
33 [1] - 8:10             ANTONIO [1] - 1:4
                                                      collusion [1] - 8:3          9:25, 10:22               except [1] - 9:13
34 [1] - 2:4              anyway [2] - 6:24, 8:7
                                                      coming [2] - 8:9,           covered [1] - 9:7          excess [1] - 8:5
381-0725 [1] - 2:11       APPEAL [1] - 1:2
                                                       12:18                      CSR [2] - 1:23, 14:22      excluded [1] - 5:15
381-6602 [1] - 2:10       Appearances [1] - 3:4
                                                      COMPANY [1] - 1:8                                      exclusion [1] - 5:15
                          apply [1] - 9:24
                                                      company [1] - 12:22                    D               excused [1] - 13:8
             4            apportion [1] - 11:17
                                                      compel [3] - 5:1, 12:6                                 exhibits [1] - 14:10
                          AS [1] - 1:4                                            damages [2] - 8:12,
                                                      complaint [4] - 9:5,                                   Expiration [1] - 14:23
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                          assigned [2] - 10:19                                    Date [1] - 14:23
             5            Assignees [1] - 4:18
                                                      completely [4] - 7:25,                                             F
                                                       8:24, 9:21, 10:9           date [1] - 12:18
                          ASSIGNEES [1] - 1:4         Computer [1] - 1:20         days [1] - 12:17           fact [4] - 6:21, 9:13,
523-4229 [2] - 1:25,      Assisted [1] - 1:20         Computer-Assisted           deadline [2] - 12:21,        9:23, 11:6
 14:25
                          attached [2] - 6:23,         [1] - 1:20                  13:3                      facts [6] - 7:25, 8:15,
523-5088 [1] - 1:25        9:10                       Computerized [1] -          DEFENDANT [2] - 1:8,         8:18, 10:7, 11:14
542-7000 [1] - 2:5        attorney [1] - 6:1           1:18                        2:7                       far [1] - 7:1
                                                                                                                                       2
Fax [1] - 14:25             11:23, 12:6, 12:19,         14:24                     10:4, 10:15, 11:5,
                                                                                                                        P
FAX [3] - 1:25, 2:6,        13:6, 13:7                Law [2] - 2:4, 14:13        11:13, 12:7, 13:7
  2:11                     Honorable [2] - 1:15,      lawsuit [7] - 5:23,        MY [1] - 14:15             P.C. [2] - 2:4, 14:13
February [2] - 12:18,       4:6                         8:23, 8:24, 9:3, 9:9,                               PAGE [1] - 3:2
  14:16                    hum [2] - 8:6, 10:7          9:21, 10:14                         N               pages [1] - 6:23
file [2] - 5:3, 12:8       Hurtado [1] - 4:13         least [1] - 9:18                                      paid [1] - 14:13
filed [1] - 5:23           HURTADO [2] - 1:3,         leave [6] - 4:24, 5:3,     name [1] - 12:12           paid/will [1] - 14:13
final [1] - 11:7            1:4                         5:7, 6:22, 7:15, 10:2    names [1] - 12:11          parties [2] - 14:6,
Firm [2] - 2:4, 14:13      Hurtado's [2] - 7:3,       legal [1] - 11:12          nature [1] - 11:11          14:11
first [12] - 5:2, 5:7,      7:10                      Leticia [2] - 2:3, 14:14   need [1] - 11:22           party [10] - 4:25, 5:11,
  6:16, 7:24, 8:23, 9:3,   Hurtados [6] - 5:19,       Lety [2] - 2:3, 4:17       negligence [2] -            7:19, 8:2, 8:11, 8:19,
  9:9, 10:8, 11:7,          5:23, 6:5, 6:20, 7:1,     liable [2] - 7:24, 11:16    10:16, 10:24               10:3, 10:5, 11:9,
  11:19, 12:11              10:19                     lied [1] - 9:18            never [1] - 9:6             11:15
FLORES [1] - 1:4           husband [4] - 5:15,        LLP [1] - 2:9              NO [4] - 1:2, 1:2, 2:3,    pending [1] - 10:14
folks [1] - 13:1            6:2, 6:19, 9:5            look [1] - 6:22             2:8                       PHONE [2] - 2:5, 2:10
following [2] - 1:14,                                 looked [1] - 12:7          Notzon [1] - 4:6           phone [2] - 10:17,
  4:2                                  I              looking [1] - 11:25        NOTZON [1] - 1:16           11:13
FOR [2] - 2:2, 2:7                                    LOYA [1] - 1:8             NOVEMBER [1] - 3:2         PLAINTIFFS [2] - 1:5,
foregoing [1] - 14:5       idea [1] - 8:25            Loya [7] - 4:14, 4:16,     November [3] - 1:11,        2:2
form [1] - 9:2             IN [1] - 1:3                 5:13, 5:20, 6:24, 7:8,    1:13, 4:7                 Plaintiffs [1] - 5:19
fraud [1] - 8:4            included [1] - 14:7          7:11                     numbered [2] - 1:15,       plead [3] - 8:17, 10:6,
                           independent [1] - 9:22     Lyde [4] - 2:8, 2:9,        14:7                       11:14
                           independently [1] -
           G                                            4:15, 12:16                                         pled [1] - 8:15
                             11:16                    LYDE [19] - 4:15, 4:20,               O               point [1] - 12:14
GARZA [11] - 4:17,         Index [1] - 3:5              4:23, 5:5, 5:8, 6:10,                               police [1] - 6:13
 5:2, 8:22, 9:13, 9:20,    INDEX [1] - 3:1              7:16, 8:3, 8:7, 8:14,    objection [2] - 5:3,       policy [4] - 5:14, 9:7,
 10:4, 10:15, 11:5,        indicate [1] - 8:15          10:18, 10:23, 11:3,       10:4                       9:9
 11:13, 12:7, 13:7         indicative [1] - 8:18        11:21, 11:23, 12:2,      objections [5] - 7:21,     portions [1] - 14:6
Garza [3] - 2:3, 4:17,     individually [2] - 7:24,     12:5, 12:19, 13:6         8:21, 10:2, 11:12         position [2] - 8:23,
 14:14                       8:8                      Lyde's [1] - 12:8          obviously [3] - 8:15,       9:20
generate [1] - 8:4         insurance [4] - 5:22,                                  9:18, 12:23               potential [3] - 5:22,
                                                                                 occurred [2] - 5:10,
goodness [1] - 12:2          6:7, 9:7, 12:12                     M                                           8:10, 10:20
granting [1] - 11:20       INSURANCE [1] - 1:8                                    14:8                      preparation [1] -
Green [3] - 2:4, 4:18,     Insurance [1] - 4:14       Machine [1] - 1:19         OF [4] - 1:1, 1:4, 14:1,    14:12
 14:13                     insured [2] - 5:14,        March [2] - 5:10, 5:17      14:2                      presiding [2] - 1:16,
grounds [1] - 9:12           5:16                     matters [2] - 4:10,        Office [1] - 14:25          4:7
Guevara [14] - 5:13,       involves [1] - 5:9          13:10                     office [1] - 12:8          printed [1] - 14:13
 5:18, 5:20, 5:23,         issues [1] - 12:10         means [1] - 5:21           OFFICE [1] - 1:25          problem [1] - 12:20
 5:25, 6:17, 6:25, 7:4,                               Mendoza [2] - 14:4,        Official [2] - 14:4,       proceeding [1] - 5:24
 7:19, 7:23, 9:5, 9:9,                J                14:22                      14:23                     proceedings [5] -
 10:3, 10:20                                          MENDOZA [1] - 1:23         OFFICIAL [2] - 1:23,        1:14, 3:7, 4:2, 14:6,
GUEVARA [1] - 1:5          John [1] - 2:8             money [1] - 7:12            14:15                      14:10
Guevara's [1] - 7:11       Jorge [1] - 4:17           Monica [1] - 4:6           once [1] - 9:18            PROCEEDINGS [2] -
                           Judge [3] - 1:16, 4:6,     MONICA [1] - 1:16          one [6] - 4:24, 5:2,        4:1, 13:15
           H                 11:3                     morning [4] - 4:8,          7:21, 10:6, 10:16,        Proceedings [2] -
                           judgment [5] - 7:4,         4:19, 4:20, 4:24           12:23                      1:18, 3:6
HAND [1] - 14:15             8:25, 10:10, 10:13,      motion [13] - 4:24, 5:1,   open [1] - 14:8            produce [3] - 12:11,
happy [1] - 12:25            11:7                      5:3, 5:7, 6:22, 7:15,     Open [1] - 4:3              12:16, 13:2
Haynes [1] - 2:9           judgments [1] - 7:7         7:18, 8:19, 8:20,         order [3] - 4:5, 11:22,    produced [2] - 1:19,
hear [1] - 8:20            JUDICIAL [1] - 1:8          10:2, 10:25, 11:11,        12:16                      12:9
heard [3] - 1:14, 4:11,    jury [1] - 11:17            12:5                      ordered [1] - 13:4         producing [1] - 12:20
 13:11                                                motions [1] - 4:23         Original [1] - 14:13       proven [1] - 6:24
hears [1] - 6:24                      K               MR [19] - 4:15, 4:20,      original [1] - 11:1        put [1] - 7:16
held [1] - 1:16                                        4:23, 5:5, 5:8, 6:10,     originally [3] - 5:9,
hereby [1] - 14:5          KARLA [1] - 1:4             7:16, 8:3, 8:7, 8:14,      5:20, 6:20
honestly [1] - 7:22                                    10:18, 10:23, 11:3,       OSBALDO [1] - 1:3
                                                                                                                       Q
Honor [17] - 4:15,                    L                11:21, 11:23, 12:2,       otherwise [1] - 6:7        quite [1] - 7:21
 4:20, 4:24, 5:4, 5:8,                                 12:5, 12:19, 13:6
 5:9, 6:14, 6:21, 8:22,    LAREDO [1] - 1:24          MS [11] - 4:17, 5:2,
 10:15, 11:5, 11:21,       Laredo [2] - 1:16,          8:22, 9:13, 9:20,
                                                                                 3

           R               shape [1] - 9:2            trial [1] - 12:18
                           show [2] - 8:10, 8:15      true [1] - 14:5
raised [1] - 7:20          shows [1] - 6:11           truly [1] - 14:10
reads [1] - 6:13           sic [1] - 6:6              trying [3] - 7:10, 7:18,
RECORD [1] - 1:1           side [1] - 7:20              8:4
Record [4] - 1:19,         signed [3] - 9:14,         two [3] - 4:23, 12:22,
  14:7, 14:10, 14:12        10:10, 11:7                 13:2
recorded [1] - 6:16        situation [1] - 11:9
reflects [1] - 14:10       soon [1] - 6:24                       U
related [3] - 9:2,         sorry [1] - 11:3
  11:18, 12:11             sounds [1] - 9:11          under [1] - 8:10
report [1] - 6:13          Started [1] - 3:6          underlying [1] - 7:5
reported [2] - 1:18,       state [1] - 11:14          unrelated [2] - 10:9,
  14:8                     STATE [1] - 14:1            11:18
Reporter [2] - 14:4,       State [1] - 14:5           up [3] - 6:11, 6:24,
  14:23                    statement [1] - 6:17        12:18
REPORTER [1] - 1:23        Stenotype [1] - 1:19
REPORTER'S [1] - 1:1       still [2] - 11:1, 12:22                V
Reporter's [5] - 1:19,     STREET [1] - 1:24
  3:8, 14:7, 14:9,                                    vehicle [2] - 5:18, 9:16
                           Street [1] - 14:24
  14:12                                               verified [1] - 9:15
                           stuff [1] - 8:8
representation [2] -                                  versus [1] - 4:13
                           Style [1] - 3:3
  9:8, 13:1                                           Vicente [2] - 14:4,
                           styled [1] - 14:7
requested [1] - 14:6                                   14:22
                           Suite [2] - 1:24, 14:24
requesting [1] - 5:12                                 VICENTE [1] - 1:23
                           summary [2] - 7:4, 7:6
requests [1] - 12:9                                   Victoria [1] - 14:24
                           supports [1] - 8:20
resolved [1] - 10:13                                  VICTORIA [1] - 1:24
                           sustained [1] - 9:22
respectfully [1] -                                    Vidaurri [1] - 2:9
                                                      Volume [1] - 14:13
  12:15                               T               VOLUME [1] - 1:1
respective [1] - 14:11
response [1] - 10:8        TEXAS [4] - 1:6, 1:23,     volume [1] - 14:7
responses [2] - 9:14,        1:24, 14:1               VOLUMES [1] - 1:1
  12:9                     Texas [6] - 1:17, 2:5,     VS [1] - 1:7
responsibility [1] -         2:10, 14:5, 14:22,
  11:17                      14:24                               W
responsible [11] -         THE [29] - 1:3, 2:2,
                             2:7, 4:4, 4:8, 4:13,     WEBB [2] - 1:6, 14:2
  4:25, 5:11, 7:19, 8:2,
  8:8, 8:11, 8:19, 10:3,     4:19, 4:21, 5:6, 6:8,    Webb [2] - 1:16, 14:4
  10:5, 11:9, 11:15          7:14, 8:1, 8:6, 8:13,    WHEREUPON [1] -
retired [1] - 12:24          8:17, 9:11, 9:17,         4:2
reviewing [2] - 10:16,       10:1, 10:12, 10:21,      wholly [1] - 11:18
  11:13                      10:25, 11:10, 11:20,     wit [1] - 4:3
Rick [1] - 4:15              11:22, 11:25, 12:3,      withdraw [1] - 6:25
rights [1] - 7:7             13:4, 13:9, 14:1         withdrew [2] - 9:8,
rise [1] - 4:4             they've [1] - 10:23         9:24
Rodriguez [1] - 2:9        third [10] - 4:25, 5:11,   WITNESS [1] - 14:15
                             7:19, 8:2, 8:11, 8:19,   words [1] - 10:13
                             10:3, 10:5, 11:9,        writing [1] - 14:6
           S                                          wrongful [2] - 7:8,
                             11:15
SBOT [2] - 2:3, 2:8        three [1] - 7:20            7:12
scene [1] - 6:11           to-wit [1] - 4:3
scheme [1] - 6:5           today [1] - 9:21
seated [1] - 4:9           took [1] - 6:18
second [2] - 4:25,         total [1] - 14:12
 10:16                     transcript [1] - 14:13
Section [1] - 8:10         Transcription [1] -
See [1] - 14:12              1:20
September [1] - 6:18       transcription [1] -
session [1] - 4:6            14:5
set [1] - 5:25             TRIAL [1] - 1:2
                                                             1

1                         REPORTER'S RECORD
                        VOLUME 3 OF 4 VOLUMES
2             TRIAL COURT CAUSE NO. 2016-CVT-001431-D2
                      APPEAL NO. 04-17-00070-CV
3
     OSBALDO HURTADO AVALOS        ) IN THE DISTRICT COURT
4    AND ANTONIO HURTADO AS        )
     ASSIGNEES OF KARLA FLORES     )
5    GUEVARA,                      )
                   PLAINTIFFS,     )
6                                  ) WEBB COUNTY, TEXAS
                                   )
7    VS.                           )
                                   )
8    LOYA INSURANCE COMPANY,       )
                    DEFENDANT.     ) 111TH JUDICIAL DISTRICT
9

10
                  *******************************
11                        January 19, 2017
                  *******************************
12

13                    On the 19th day of January 2017, the

14   following proceedings came on to be heard in the

15   above-entitled and numbered cause before the Honorable

16   MONICA Z. NOTZON, Judge presiding, held in Laredo, Webb

17   County, Texas:

18                    Proceedings reported by Computerized

19   Stenotype Machine; Reporter's Record produced by

20   Computer-Assisted Transcription.

21

22

23                VICENTE MENDOZA, TEXAS CSR #6918
           OFFICIAL COURT REPORTER - 111TH DISTRICT COURT
24                 1110 VICTORIA STREET, Suite 301
                         LAREDO, TEXAS 78040
25           OFFICE (956) 523-4229    FAX (956) 523-5088
                                                  2

1                         A P P E A R A N C E S

2    FOR THE PLAINTIFFS:

3       SBOT NO. 24038023
        Jorge A. Green
4       The Green Law Firm, P.C.
        34 S. Coria
5       Brownsville, Texas 78520
        (956) 542-7000 PHONE
6       (956) 542-7026 FAX

7    FOR THE DEFENDANT:

8       SBOT NO. 12712700
        John R. Lyde
9       Vidaurri, Lyde, Rodriguez & Haynes, LLP
        202 N. 10th Avenue
10      Edinburg, Texas 78541
        (956) 381-6602 PHONE
11      (956) 381-0725 FAX

12

13

14

15

16

17

18

19

20

21

22

23

24

25
                                                     3

1                       CHRONOLOGICAL INDEX

2    JANUARY 19, 2017                         PAGE

3    Style of the Case -------------------      1

4    Appearances -------------------------      2

5    Chronological Index -----------------      3

6    Proceedings Started -----------------      4

7    Proceedings Concluded ---------------     14

8    Court Reporter's Certificate --------     15

9
     *-*-*-*-*-*-*
10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
                                                                   4

1                             PROCEEDINGS

2                      WHEREUPON the following proceedings

3    were had in Open Court, before Court, to-wit:

4                      THE BAILIFF:     All rise.    Please come

5    to order.     The 111th District Court is now in

6    session.     The Honorable Judge Monica Notzon

7    presiding.     (January 19, 2017 - Time:       9:07 a.m.)

8                      THE COURT:     Good morning everyone.

9    Please be seated.

10                     (Whereupon other matters on the

11                     Court's docket were heard)

12                     THE COURT:     Avalos and Hurtado versus

13   Loya Insurance, 2016-CVT-001431-D2.

14                     MR. LYDE:    We've got a motion to

15   compel, Your Honor.

16                     THE COURT:     How long are you

17   anticipating?

18                     MR. LYDE:    Not more than 15 minutes.

19                     THE COURT:     Let me just get through my

20   docket, and I'll recall you.

21                     MR. LYDE:    Is that accurate?

22                     MR. GREEN:     That's accurate.

23                     THE COURT:     All right.    I'll recall.

24                     (Whereupon other matters on the

25                     Court's docket were heard)
                                                               5

1                    (Case recalled)

2                    THE COURT:    On Avalos and Hurtado

3    versus Loya Insurance, 2016-CVT-001431-D2, I have the

4    lawyers standing by.

5                    (Whereupon other matters on the

6                    Court's docket were heard)

7                    (Case recalled)

8                    THE COURT:    Avalos and Hurtado versus

9    Loya Insurance, 2016-CVT-001431-D2.    All right.

10   Motion to compel, Counsel?

11                   MR. LYDE:    Yes, Your Honor.   We're

12   asking that two different things be compelled.      One

13   is that we get some discovery responses that we

14   haven't received yet; and, the second thing that

15   we're asking, is that the Plaintiffs be presented for

16   deposition before the discovery deadline.

17                   I think the discovery deadline is

18   tomorrow; but, we're asking that they be presented

19   for depos.   I think that for the Court to understand

20   the importance of the motion to compel that the Court

21   needs to know a little bit of background about the

22   case.   For the Court to know, this actually, this

23   case, it actually involved an earlier case.     Okay?

24   It's a completely separate earlier case.     And the

25   earlier case involved an automobile accident in March
                                                                6

1    of 2013; and, the Hurtados, the Plaintiffs in this

2    case, they sued a Ms. Guevara in that separate case.

3                    THE COURT:     Oh, I think I remember.

4    This is the case where one client lied about the

5    other client driving or something like that?

6                    MR. LYDE:     Yeah.   What happens is that

7    the case goes along, the lawyers are providing a

8    defense for Ms. Guevara; and, right before she is

9    deposed she tells her counsel, there is something

10   that you need to know.      I wasn't the one driving the

11   car.   It was my husband.

12                   He was an excluded driver, and we got

13   together with the Hurtados at the scene and said,

14   well, we are going to say that I was driving so that

15   there is coverage.    Okay.

16                   So, with regards to Ms. Guevara, just

17   so that the Court knows, we've got a recorded

18   statement from her.    We've, additionally, taken her

19   deposition in this cause, and she testified exactly

20   to what I've just told the Court.

21                   THE COURT:     So, who do you need to

22   depose?

23                   MR. LYDE:     I want to depose the

24   Plaintiffs.   Okay?   But, before I get to that let me

25   talk about the discovery that we have.
                                                                7

1                   MR. GREEN:     Well, if I may just point

2    out to Your Honor is that she is a plaintiff.        So,

3    Ms. Guevara is a Fred Loya insured.     We took an

4    assignment from Ms. Guevara in this case, this

5    defendant, and he's taken the Plaintiff's deposition.

6                   THE COURT:     But not the Hurtados?

7                   MR. LYDE:     Exactly.

8                   MR. GREEN:     And the reason that he has

9    not taken the Hurtados' deposition is because -- this

10   case is about whether or not Fred Loya Insurance owed

11   Ms. Guevara any coverage.    So, it's not as simple as

12   Mr. Lyde has sort of made it out to be; and, I think

13   that there may have been some confusion because I

14   think that the Court even recently had designated Ms.

15   Guevara as responsible third party, which I think

16   that it results sort of from the confusion of -- the

17   suggestion that the other case is somehow still

18   relevant in this case.    But, Ms. Guevara --

19                  THE COURT:     Counsel, do you have

20   control over the Hurtados?

21                  MR. GREEN:     I do, Your Honor.     But,

22   the Hurtados have been deposed.     So, Francisco

23   Martinez, the lawyer --

24                  THE COURT:     They have been deposed?

25                  MR. LYDE:     Yes.   But, not on this
                                                                8

1    case, and not both in the other case.       In the other

2    case one was deposed.

3                   THE COURT:     I see.

4                   MR. LYDE:     Neither has been deposed in

5    our case about conversations there at the scene, you

6    know, who agreed to what, you know, all that kind of

7    good stuff.

8                   So, the discovery, putting aside the

9    fact that there are at least six items for both

10   Plaintiffs that said -- they said that they would

11   supplement, and we never received that, putting aside

12   that issue; they objected to things like give us

13   criminal backgrounds.   What about other lawsuits?

14                  Tell us about your educational

15   history, all of those things; and, in addition, as

16   far as interrogatories, we had asked them about,

17   well, we want to know if there are any conversations

18   that you've had with Loya.    We want to know if there

19   are any admissions against interest that you are

20   going to be claiming against us.       We want to know

21   what conversations you've had with Ms. Guevara.

22                  THE COURT:     So, do you want to go

23   through the discovery one by one, because it sounds

24   like matters I'd likely compel.

25                  MR. GREEN:     Well, and I think that
                                                               9

1    what is important to remember, again Judge, is that

2    my clients are assignees.     So, it's Ms. Guevara's

3    claim against Fred Loya that we had taken an

4    assignment of.

5                     THE COURT:    I'm going to compel the

6    depos of the Hurtados; and, I am also going to compel

7    the discovery if that's what I see.        So, you can

8    confer on it; or, you can supplement within a certain

9    amount of time; or, we can start going down one by

10   one.

11                    MR. LYDE:    Judge, what I would prefer,

12   if the Court would, if the trial setting is going to

13   be good, then I need those depos in at least the next

14   two weeks, and I need the discovery responses before

15   that if the trial date is going to be good.

16                    THE COURT:    What's the trial date?

17                    MR. LYDE:    The 20th of February.

18                    THE COURT:    Have you been to mediation

19   on this case?

20                    MR. LYDE:    No, ma'am.    We have not

21   been to mediation.

22                    THE COURT:    I'd like to compel their

23   depos then within the next two weeks, as well as any

24   discovery supplementation before you come back on the

25   compel.
                                                                10

1                      I can hold the compel in abeyance to

2    see if you can get it done in two weeks; but, I am

3    going to order at least a half day mediation between

4    the parties.

5                      MR. GREEN:    That first case, it was

6    reduced to a judgment.     So, the car accident case is

7    done.    These people were in a car accident.       This

8    case is about whether or not Fred Loya owed Karla

9    Guevara coverage.

10                     THE COURT:    Right.    I understand, but

11   that's my ruling.

12                     MR. GREEN:    I understand.    They've

13   been asked a bunch of questions.         Who was driving the

14   car?     All of this, was asked a million times in the

15   first deposition.     So, it would be abusive for Mr.

16   Lyde to come back and ask the same questions over

17   again.    If these people are going to be deposed

18   again, Your Honor, can we limit it to questions that

19   were not asked in the initial deposition?

20                     THE COURT:    Counsel, I'm going to give

21   him leeway.     He's a lawyer on this case, and it's a

22   new case.     So, he has a right to depose them, but

23   watch your questions, Mr. Lyde.

24                     MR. LYDE:    I will, Your Honor.    And if

25   we could have the discovery responses supplemented,
                                                                     11

1    particularly about conversations and documents

2    between the Guevaras and Mr. Flores, her husband.

3                      I mean, those are the things that

4    we're looking for.        So, if we can have that

5    supplemented within a week and then get the depos of

6    the Plaintiffs within two weeks -- Your Honor, just

7    the discovery responses might allow us to go to

8    mediation.     Okay?

9                      THE COURT:        Then why are we taking the

10   depos?

11                     MR. LYDE:        Well, I mean, if we know

12   what they are going to be contending as far as

13   conversations that they had with Loya and documents

14   that they got from Loya and the conversations that

15   they had with Ms. Guevara and her husband, and the

16   documents they got from her; to be honest, I pretty

17   well know, you know, but I still want to depose these

18   people.   But, it still might be enough for us to go

19   to mediation, but I have to know at least that

20   information.

21                     MR. GREEN:        I think an important

22   question, Judge, is:           What does he think he gets by

23   proving -- and it didn't happen that way.

24                     There's a lot of motivation for her to

25   be saying this.        Okay?     When she was supposed to sit
                                                                   12

1    for her deposition, okay, at that point we were

2    outside the statute of limitations; and, at the time

3    that she was claiming that her husband was driving

4    the car, her husband had died.

5                     So, we were outside the statute of

6    limitations and could no longer sue her husband.         At

7    that point, the police report, my client's sworn

8    testimony, her sworn testimony in interrogatory

9    responses, those all indicate that she was driving

10   the car.

11                    THE COURT:    All right.   Supplement

12   within a week and depos within two weeks.      If you

13   need my intervention, let me know.

14                    MR. LYDE:    Thank you, Your Honor.

15   Your Honor, I'll work up an appropriate order and get

16   it to Mr. Green and get it to the Court.

17                    MR. GREEN:    And, Your Honor, so that

18   we don't have to come back on other things, Your

19   Honor, this goes both ways?     Mr. Lyde, because he has

20   treated this like a car accident case the whole time,

21   he hasn't given me dates for the deposition of Fred

22   Loya's staff counsel at the time, which was Francisco

23   Martinez and the insurance adjusters that denied this

24   lady coverage.   And I'm going to need it.     We are

25   going to do all of those things.
                                                                 13

1                    I'm going to need those depositions as

2    well.   So, can the Court order that within the same

3    timeframe that we can work on dates for those people

4    as well?

5                    THE COURT:     All right.

6                    MR. LYDE:     I can provide him dates

7    during this time period but only for people that I

8    have control over.    Okay?

9                    THE COURT:     All right.

10                   MR. LYDE:     Now, getting those done

11   within that time period, I can't say that; but, I can

12   certainly give him dates.

13                   THE COURT:     All right.   Two weeks.

14                   MR. LYDE:     Very good then.

15                   COURT COORDINATOR:      As far as the jury

16   trial, it was moved to the 21st.       I sent a notice

17   after the holidays.

18                   MR. LYDE:     I misspoke, Your Honor.       We

19   did get that notice, Your Honor.

20                   THE COURT:     Okay.   All right.    But,

21   let me know if you need a continuance.

22                   MR. LYDE:     Okay, Your Honor.     We will.

23   Thank you Your Honor.

24                   THE COURT:     All right, Counsel.     Have

25   a good day.
                                           14

1    MR. GREEN:   Thank you, Your Honor.

2    (Whereupon other matters were had

3    before the Court)

4

5

6

7       *-*-*-*-*-*-*-*-*-*

8      PROCEEDINGS CONCLUDED

9       *-*-*-*-*-*-*-*-*-*

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
                                                           15

1    THE STATE OF TEXAS      )

2    COUNTY OF WEBB          )

3

4                    I, Vicente Mendoza, Official Court
     Reporter for the 111th District Court, Webb County,
5    State of Texas, do hereby certify that the above and
     foregoing contains a true and correct transcription
6    of all portions of evidence and other proceedings
     requested in writing by counsel for the parties to be
7    included in this volume of the Reporter's Record, in
     the above-styled and numbered cause, all of which
8    occurred in open court or in chambers and were
     reported by me.
9
                    I further certify that the Reporter's
10   Record of the proceedings truly and correctly
     reflects the exhibits, if any, admitted by the
11   respective parties.

12                   I further certify that the total cost
     for the preparation of this Reporter's Record is $See
13   Original printed transcript, Volume 1 and was
     paid/will be paid by The Green Law Firm, P.C. by
14   Leticia Garza.

15
                    WITNESS MY OFFICIAL HAND this the 9th
16   day of February, 2017.

17

18

19

20

21

22               _________________________________
                 Vicente Mendoza, Texas CSR #6918
23                  Expiration Date: 12/31/2018
          Official Court Reporter - 111th District Court
24                1110 Victoria Street, Suite 301
                         Laredo, Texas 78040
25            Office (956) 523-4229 Fax (956)523-5088
                                                                                                                                          1

             #                                          8:13                       conversations [6] -         10:17
                                       7
                                                       BAILIFF [1] - 4:4            8:5, 8:17, 8:21, 11:1,    deposition [8] - 5:16,
#6918 [2] - 1:23, 15:22    78040 [2] - 1:24, 15:24     between [2] - 10:3,          11:13, 11:14               6:19, 7:5, 7:9, 10:15,
                           78520 [1] - 2:5              11:2                       COORDINATOR [1] -           10:19, 12:1, 12:21
             0             78541 [1] - 2:10            bit [1] - 5:21               13:15                     depositions [1] - 13:1
                                                       Brownsville [1] - 2:5       Coria [1] - 2:4            designated [1] - 7:14
04-17-00070-CV [1] -                   9               bunch [1] - 10:13           correct [1] - 15:5         died [1] - 12:4
 1:2                                                                               correctly [1] - 15:10      different [1] - 5:12
                           956 [7] - 1:25, 2:5, 2:6,              C                cost [1] - 15:12           discovery [11] - 5:13,
             1              2:10, 2:11, 15:25                                      counsel [3] - 6:9,          5:16, 5:17, 6:25, 8:8,
                           956)523-5088 [1] -          car [7] - 6:11, 10:6,        12:22, 15:6                8:23, 9:7, 9:14, 9:24,
1 [2] - 3:3, 15:13          15:25                       10:7, 10:14, 12:4,         Counsel [4] - 5:10,         10:25, 11:7
10th [1] - 2:9             9:07 [1] - 4:7               12:10, 12:20                7:19, 10:20, 13:24        DISTRICT [3] - 1:3,
1110 [2] - 1:24, 15:24     9th [1] - 15:15             case [24] - 5:22, 5:23,     COUNTY [2] - 1:6,           1:8, 1:23
111TH [2] - 1:8, 1:23                                   5:24, 5:25, 6:2, 6:4,       15:2                      District [3] - 4:5, 15:4,
111th [3] - 4:5, 15:4,                 A                6:7, 7:4, 7:10, 7:17,      County [2] - 1:17, 15:4     15:23
 15:23                                                  7:18, 8:1, 8:2, 8:5,       Court [18] - 3:8, 4:3,     docket [4] - 4:11,
12/31/2018 [1] - 15:23     a.m. [1] - 4:7               9:19, 10:5, 10:6,           4:5, 5:19, 5:20, 5:22,     4:20, 4:25, 5:6
12712700 [1] - 2:8         abeyance [1] - 10:1          10:8, 10:21, 10:22,         6:17, 6:20, 7:14,         documents [3] - 11:1,
14 [1] - 3:7               above-entitled [1] -         12:20                       9:12, 12:16, 13:2,         11:13, 11:16
15 [2] - 3:8, 4:18          1:15                       Case [3] - 3:3, 5:1, 5:7     14:3, 15:4, 15:4,         done [3] - 10:2, 10:7,
19 [3] - 1:11, 3:2, 4:7    above-styled [1] -          CAUSE [1] - 1:2              15:23                      13:10
19th [1] - 1:13             15:7                       certain [1] - 9:8           COURT [32] - 1:2, 1:3,     down [1] - 9:9
                           abusive [1] - 10:15         certainly [1] - 13:12        1:23, 4:8, 4:12, 4:16,    driver [1] - 6:12
             2             accident [4] - 5:25,        Certificate [1] - 3:8        4:19, 4:23, 5:2, 5:8,     driving [6] - 6:5, 6:10,
                            10:6, 10:7, 12:20          certify [3] - 15:5, 15:9,    6:3, 6:21, 7:6, 7:19,      6:14, 10:13, 12:3,
2 [1] - 3:4                accurate [2] - 4:21,         15:12                       7:24, 8:3, 8:22, 9:5,      12:9
2013 [1] - 6:1              4:22                       chambers [1] - 15:8          9:16, 9:18, 9:22,         during [1] - 13:7
2016-CVT-001431-D          addition [1] - 8:15         CHRONOLOGICAL                10:10, 10:20, 11:9,
 2 [4] - 1:2, 4:13, 5:3,   additionally [1] - 6:18      [1] - 3:1                   12:11, 13:5, 13:9,                    E
 5:9                       adjusters [1] - 12:23       Chronological [1] -          13:13, 13:15, 13:20,
2017 [5] - 1:11, 1:13,     admissions [1] - 8:19        3:5                         13:24                     Edinburg [1] - 2:10
 3:2, 4:7, 15:16           admitted [1] - 15:10        claim [1] - 9:3             court [1] - 15:8           educational [1] - 8:14
202 [1] - 2:9              agreed [1] - 8:6            claiming [2] - 8:20,        Court's [3] - 4:11,        entitled [1] - 1:15
20th [1] - 9:17            allow [1] - 11:7             12:3                        4:25, 5:6                 evidence [1] - 15:6
21st [1] - 13:16           amount [1] - 9:9            client [2] - 6:4, 6:5       coverage [4] - 6:15,       exactly [2] - 6:19, 7:7
24038023 [1] - 2:3         AND [1] - 1:4               client's [1] - 12:7          7:11, 10:9, 12:24         excluded [1] - 6:12
                           anticipating [1] - 4:17     clients [1] - 9:2           criminal [1] - 8:13        exhibits [1] - 15:10
             3             ANTONIO [1] - 1:4           COMPANY [1] - 1:8           CSR [2] - 1:23, 15:22      Expiration [1] - 15:23
                           APPEAL [1] - 1:2            compel [9] - 4:15,
3 [2] - 1:1, 3:5                                                                              D
                           Appearances [1] - 3:4        5:10, 5:20, 8:24, 9:5,                                            F
301 [2] - 1:24, 15:24      appropriate [1] -            9:6, 9:22, 9:25, 10:1
34 [1] - 2:4                12:15                      compelled [1] - 5:12        Date [1] - 15:23           fact [1] - 8:9
381-0725 [1] - 2:11        AS [1] - 1:4                completely [1] - 5:24       date [2] - 9:15, 9:16      far [3] - 8:16, 11:12,
381-6602 [1] - 2:10        aside [2] - 8:8, 8:11       Computer [1] - 1:20         dates [4] - 12:21, 13:3,     13:15
                           ASSIGNEES [1] - 1:4         Computer-Assisted            13:6, 13:12               FAX [3] - 1:25, 2:6,
             4             assignees [1] - 9:2          [1] - 1:20                 deadline [2] - 5:16,         2:11
                           assignment [2] - 7:4,       Computerized [1] -           5:17                      Fax [1] - 15:25
4 [2] - 1:1, 3:6                                        1:18                       defendant [1] - 7:5        February [2] - 9:17,
                            9:4
                           Assisted [1] - 1:20         CONCLUDED [1] -             DEFENDANT [2] - 1:8,         15:16
             5             automobile [1] - 5:25        14:8                        2:7                       Firm [2] - 2:4, 15:13
                           AVALOS [1] - 1:3            Concluded [1] - 3:7         defense [1] - 6:8          first [2] - 10:5, 10:15
523-4229 [2] - 1:25,                                                               denied [1] - 12:23         Flores [1] - 11:2
                           Avalos [3] - 4:12, 5:2,     confer [1] - 9:8
 15:25                                                                             depos [7] - 5:19, 9:6,
                            5:8                        confusion [2] - 7:13,                                  FLORES [1] - 1:4
523-5088 [1] - 1:25                                                                 9:13, 9:23, 11:5,
                           Avenue [1] - 2:9             7:16                                                  following [2] - 1:14,
542-7000 [1] - 2:5                                                                  11:10, 12:12                4:2
                                                       contains [1] - 15:5
542-7026 [1] - 2:6                                                                 depose [4] - 6:22,         FOR [2] - 2:2, 2:7
                                       B               contending [1] - 11:12
                                                                                    6:23, 10:22, 11:17
                                                       continuance [1] -                                      foregoing [1] - 15:5
                           background [1] - 5:21        13:21                      deposed [6] - 6:9,         Francisco [2] - 7:22,
                           backgrounds [1] -           control [2] - 7:20, 13:8     7:22, 7:24, 8:2, 8:4,       12:22
                                                                                                                                   2
Fred [5] - 7:3, 7:10,     included [1] - 15:7      likely [1] - 8:24          MY [1] - 15:15             PHONE [2] - 2:5, 2:10
 9:3, 10:8, 12:21         INDEX [1] - 3:1          limit [1] - 10:18                                     plaintiff [1] - 7:2
                          Index [1] - 3:5          limitations [2] - 12:2,                N              Plaintiff's [1] - 7:5
           G              indicate [1] - 12:9        12:6                                                PLAINTIFFS [2] - 1:5,
                          information [1] -        LLP [1] - 2:9              need [8] - 6:10, 6:21,      2:2
Garza [1] - 15:14           11:20                  looking [1] - 11:4          9:13, 9:14, 12:13,        Plaintiffs [5] - 5:15,
given [1] - 12:21         initial [1] - 10:19      LOYA [1] - 1:8              12:24, 13:1, 13:21         6:1, 6:24, 8:10, 11:6
GREEN [10] - 4:22,        Insurance [4] - 4:13,    Loya [10] - 4:13, 5:3,     needs [1] - 5:21           point [3] - 7:1, 12:1,
 7:1, 7:8, 7:21, 8:25,      5:3, 5:9, 7:10           5:9, 7:3, 7:10, 8:18,    never [1] - 8:11            12:7
 10:5, 10:12, 11:21,      INSURANCE [1] - 1:8        9:3, 10:8, 11:13,        new [1] - 10:22            police [1] - 12:7
 12:17, 14:1              insurance [1] - 12:23      11:14                    next [2] - 9:13, 9:23      portions [1] - 15:6
Green [4] - 2:3, 2:4,     insured [1] - 7:3        Loya's [1] - 12:22         NO [4] - 1:2, 1:2, 2:3,    prefer [1] - 9:11
 12:16, 15:13             interest [1] - 8:19      Lyde [6] - 2:8, 2:9,        2:8                       preparation [1] -
Guevara [11] - 6:2,       interrogatories [1] -      7:12, 10:16, 10:23,      notice [2] - 13:16,         15:12
 6:8, 6:16, 7:3, 7:4,       8:16                     12:19                     13:19                     presented [2] - 5:15,
 7:11, 7:15, 7:18,        interrogatory [1] -      LYDE [20] - 4:14, 4:18,    NOTZON [1] - 1:16           5:18
 8:21, 10:9, 11:15          12:8                     4:21, 5:11, 6:6, 6:23,   Notzon [1] - 4:6           presiding [2] - 1:16,
GUEVARA [1] - 1:5         intervention [1] -         7:7, 7:25, 8:4, 9:11,    numbered [2] - 1:15,        4:7
Guevara's [1] - 9:2         12:13                    9:17, 9:20, 10:24,        15:7                      pretty [1] - 11:16
Guevaras [1] - 11:2       involved [2] - 5:23,       11:11, 12:14, 13:6,                                 printed [1] - 15:13
                            5:25                     13:10, 13:14, 13:18,                O               PROCEEDINGS [2] -
           H              issue [1] - 8:12           13:22                                                4:1, 14:8
                          items [1] - 8:9                                     objected [1] - 8:12        proceedings [5] -
half [1] - 10:3
                                                              M               occurred [1] - 15:8         1:14, 3:7, 4:2, 15:6,
HAND [1] - 15:15                                                              OF [4] - 1:1, 1:4, 15:1,
Haynes [1] - 2:9
                                     J             ma'am [1] - 9:20            15:2
                                                                                                          15:10
                                                                                                         Proceedings [2] -
heard [4] - 1:14, 4:11,   January [3] - 1:11,      Machine [1] - 1:19         Office [1] - 15:25          1:18, 3:6
 4:25, 5:6                  1:13, 4:7              March [1] - 5:25           OFFICE [1] - 1:25          produced [1] - 1:19
held [1] - 1:16           JANUARY [1] - 3:2        Martinez [2] - 7:23,       Official [2] - 15:4,       provide [1] - 13:6
hereby [1] - 15:5         John [1] - 2:8            12:23                      15:23                     providing [1] - 6:7
history [1] - 8:15        Jorge [1] - 2:3          matters [5] - 4:10,        OFFICIAL [2] - 1:23,       proving [1] - 11:23
hold [1] - 10:1           Judge [5] - 1:16, 4:6,    4:24, 5:5, 8:24, 14:2      15:15                     putting [2] - 8:8, 8:11
holidays [1] - 13:17        9:1, 9:11, 11:22       mean [2] - 11:3, 11:11     one [8] - 5:12, 6:4,
honest [1] - 11:16                                 mediation [5] - 9:18,       6:10, 8:2, 8:23, 9:9,
Honor [16] - 4:15,
                          judgment [1] - 10:6
                                                    9:21, 10:3, 11:8,          9:10
                                                                                                                    Q
                          JUDICIAL [1] - 1:8
 5:11, 7:2, 7:21,         jury [1] - 13:15          11:19                     open [1] - 15:8            questions [4] - 10:13,
 10:18, 10:24, 11:6,                               Mendoza [2] - 15:4,        Open [1] - 4:3              10:16, 10:18, 10:23
 12:14, 12:15, 12:17,                               15:22                     order [4] - 4:5, 10:3,
 12:19, 13:18, 13:19,
                                     K
                                                   MENDOZA [1] - 1:23          12:15, 13:2                          R
 13:22, 13:23, 14:1       Karla [1] - 10:8         might [2] - 11:7, 11:18    Original [1] - 15:13
Honorable [2] - 1:15,     KARLA [1] - 1:4          million [1] - 10:14        OSBALDO [1] - 1:3          reason [1] - 7:8
 4:6                      kind [1] - 8:6           minutes [1] - 4:18         outside [2] - 12:2,        recalled [2] - 5:1, 5:7
Hurtado [3] - 4:12,       knows [1] - 6:17         misspoke [1] - 13:18        12:5                      received [2] - 5:14,
 5:2, 5:8                                          MONICA [1] - 1:16          owed [2] - 7:10, 10:8       8:11
HURTADO [2] - 1:3,
                                     L             Monica [1] - 4:6                                      recently [1] - 7:14
 1:4                                               morning [1] - 4:8                      P              Record [4] - 1:19,
Hurtados [6] - 6:1,       lady [1] - 12:24         motion [3] - 4:14,                                     15:7, 15:10, 15:12
 6:13, 7:6, 7:20, 7:22,   Laredo [2] - 1:16,        5:10, 5:20                P.C. [2] - 2:4, 15:13      RECORD [1] - 1:1
 9:6                        15:24                  motivation [1] - 11:24     PAGE [1] - 3:2             recorded [1] - 6:17
Hurtados' [1] - 7:9       LAREDO [1] - 1:24        moved [1] - 13:16          paid [1] - 15:13           reduced [1] - 10:6
husband [6] - 6:11,       Law [2] - 2:4, 15:13     MR [30] - 4:14, 4:18,      paid/will [1] - 15:13      reflects [1] - 15:10
 11:2, 11:15, 12:3,       lawsuits [1] - 8:13       4:21, 4:22, 5:11, 6:6,    particularly [1] - 11:1    regards [1] - 6:16
 12:4, 12:6               lawyer [2] - 7:23,        6:23, 7:1, 7:7, 7:8,      parties [3] - 10:4,        relevant [1] - 7:18
                            10:21                   7:21, 7:25, 8:4, 8:25,     15:6, 15:11               remember [2] - 6:3,
            I             lawyers [2] - 5:4, 6:7    9:11, 9:17, 9:20,         party [1] - 7:15            9:1
                          least [4] - 8:9, 9:13,    10:5, 10:12, 10:24,       people [5] - 10:7,         report [1] - 12:7
importance [1] - 5:20       10:3, 11:19             11:11, 11:21, 12:14,       10:17, 11:18, 13:3,       reported [2] - 1:18,
important [2] - 9:1,      leeway [1] - 10:21        12:17, 13:6, 13:10,        13:7                       15:8
 11:21                    Leticia [1] - 15:14       13:14, 13:18, 13:22,      period [2] - 13:7,         Reporter [2] - 15:4,
IN [1] - 1:3              lied [1] - 6:4            14:1                       13:11                      15:23
                                                                                3
REPORTER [1] - 1:23         10:25, 11:5               VOLUME [1] - 1:1
REPORTER'S [1] - 1:1       supposed [1] - 11:25       volume [1] - 15:7
Reporter's [5] - 1:19,     sworn [2] - 12:7, 12:8     Volume [1] - 15:13
  3:8, 15:7, 15:9,                                    VOLUMES [1] - 1:1
  15:12                               T               VS [1] - 1:7
requested [1] - 15:6
respective [1] - 15:11     testified [1] - 6:19                 W
responses [5] - 5:13,      testimony [2] - 12:8
  9:14, 10:25, 11:7,       TEXAS [4] - 1:6, 1:23,     watch [1] - 10:23
  12:9                       1:24, 15:1               ways [1] - 12:19
responsible [1] - 7:15     Texas [6] - 1:17, 2:5,     WEBB [2] - 1:6, 15:2
results [1] - 7:16           2:10, 15:5, 15:22,       Webb [2] - 1:16, 15:4
rise [1] - 4:4               15:24                    week [2] - 11:5, 12:12
Rodriguez [1] - 2:9        THE [32] - 1:3, 2:2,       weeks [6] - 9:14, 9:23,
ruling [1] - 10:11           2:7, 4:4, 4:8, 4:12,      10:2, 11:6, 12:12,
                             4:16, 4:19, 4:23, 5:2,    13:13
                             5:8, 6:3, 6:21, 7:6,
           S                                          WHEREUPON [1] -
                             7:19, 7:24, 8:3, 8:22,    4:2
SBOT [2] - 2:3, 2:8          9:5, 9:16, 9:18, 9:22,   whole [1] - 12:20
scene [2] - 6:13, 8:5        10:10, 10:20, 11:9,      wit [1] - 4:3
seated [1] - 4:9             12:11, 13:5, 13:9,       WITNESS [1] - 15:15
second [1] - 5:14            13:13, 13:20, 13:24,     writing [1] - 15:6
see [3] - 8:3, 9:7, 10:2     15:1
See [1] - 15:12            they've [1] - 10:12
sent [1] - 13:16           third [1] - 7:15
separate [2] - 5:24,       timeframe [1] - 13:3
 6:2                       to-wit [1] - 4:3
session [1] - 4:6          together [1] - 6:13
setting [1] - 9:12         tomorrow [1] - 5:18
simple [1] - 7:11          took [1] - 7:3
sit [1] - 11:25            total [1] - 15:12
six [1] - 8:9              transcript [1] - 15:13
sort [2] - 7:12, 7:16      Transcription [1] -
sounds [1] - 8:23            1:20
staff [1] - 12:22          transcription [1] -
standing [1] - 5:4           15:5
start [1] - 9:9            treated [1] - 12:20
Started [1] - 3:6          TRIAL [1] - 1:2
State [1] - 15:5           trial [4] - 9:12, 9:15,
STATE [1] - 15:1             9:16, 13:16
statement [1] - 6:18       true [1] - 15:5
statute [2] - 12:2, 12:5   truly [1] - 15:10
Stenotype [1] - 1:19       two [7] - 5:12, 9:14,
still [3] - 7:17, 11:17,     9:23, 10:2, 11:6,
 11:18                       12:12, 13:13
STREET [1] - 1:24
Street [1] - 15:24                    U
stuff [1] - 8:7
                           up [1] - 12:15
Style [1] - 3:3
styled [1] - 15:7
sue [1] - 12:6                        V
sued [1] - 6:2             versus [3] - 4:12, 5:3,
suggestion [1] - 7:17       5:8
Suite [2] - 1:24, 15:24    VICENTE [1] - 1:23
supplement [3] - 8:11,     Vicente [2] - 15:4,
 9:8, 12:11                 15:22
supplementation [1] -      VICTORIA [1] - 1:24
 9:24                      Victoria [1] - 15:24
supplemented [2] -         Vidaurri [1] - 2:9
                                                             1

1                         REPORTER'S RECORD
                        VOLUME 4 OF 4 VOLUMES
2             TRIAL COURT CAUSE NO. 2016-CVT-001431-D2
                      APPEAL NO. 04-17-00070-CV
3
     OSBALDO HURTADO AVALOS        ) IN THE DISTRICT COURT
4    AND ANTONIO HURTADO AS        )
     ASSIGNEES OF KARLA FLORES     )
5    GUEVARA,                      )
                   PLAINTIFFS,     )
6                                  ) WEBB COUNTY, TEXAS
                                   )
7    VS.                           )
                                   )
8    LOYA INSURANCE COMPANY,       )
                    DEFENDANT.     ) 111TH JUDICIAL DISTRICT
9

10
                  *******************************
11                       February 2, 2017
                  *******************************
12

13                    On the 2nd day of February 2017, the

14   following proceedings came on to be heard in the

15   above-entitled and numbered cause before the Honorable

16   MONICA Z. NOTZON, Judge presiding, held in Laredo, Webb

17   County, Texas:

18                    Proceedings reported by Computerized

19   Stenotype Machine; Reporter's Record produced by

20   Computer-Assisted Transcription.

21

22

23                VICENTE MENDOZA, TEXAS CSR #6918
           OFFICIAL COURT REPORTER - 111TH DISTRICT COURT
24                 1110 VICTORIA STREET, Suite 301
                         LAREDO, TEXAS 78040
25           OFFICE (956) 523-4229    FAX (956) 523-5088
                                                  2

1                         A P P E A R A N C E S

2    FOR THE PLAINTIFFS:

3       SBOT NO. 24038023
        Jorge A. Green
4       The Green Law Firm, P.C.
        34 S. Coria
5       Brownsville, Texas 78520
        (956) 542-7000 PHONE
6       (956) 542-7026 FAX

7    FOR THE DEFENDANT:

8       SBOT NO. 12712700
        John R. Lyde
9       Vidaurri, Lyde, Rodriguez & Haynes, LLP
        202 N. 10th Avenue
10      Edinburg, Texas 78541
        (956) 381-6602 PHONE
11      (956) 381-0725 FAX

12

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                                                     3

1                       CHRONOLOGICAL INDEX

2    FEBRUARY 2, 2017                         PAGE

3    Style of the Case -------------------      1

4    Appearances -------------------------      2

5    Chronological Index -----------------      3

6    Proceedings Started -----------------      4

7    Proceedings Concluded ---------------     27

8    Court Reporter's Certificate --------     28

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                                                                     4

1                               PROCEEDINGS

2                      WHEREUPON the following proceedings

3    were had in Open Court, before Court, to-wit:

4                      THE BAILIFF:     All rise.     Please come

5    to order.     The 111th District Court is now in

6    session.     The Honorable Judge Monica Notzon

7    presiding.     (February 2, 2017 - Time:       9:04 a.m.)

8                      THE COURT:     Good morning.     You may be

9    seated.

10                     (Whereupon other matters on the

11                     Court's docket were heard before the

12                     Court)

13                     THE COURT:     Avalos and Hurtado versus

14   Loya Insurance company, Cause Number 2016-CVT-001431.

15                     MR. LYDE:    Good morning, Your Honor.

16                     THE COURT:     How much time do you need

17   on your motion?

18                     MR. LYDE:    I would anticipate that we

19   can do it within 30 minutes, maybe 20; but, I would

20   say 30 just to be safe.

21                     THE COURT:     All right.    Let me just go

22   through my docket, and I'll get back with you all.

23                     MR. LYDE:    Yes, ma'am.

24                     MR. GREEN:     Thank you, Your Honor.

25                     (Whereupon other matters were heard
                                                                5

1                   before the Court)

2                   (Case recalled)

3                   THE COURT:    Avalos and Hurtado versus

4    Loya Insurance company, Cause Number 2016-CVT-001431.

5                   MR. LYDE:    Good morning, Your Honor.

6                   MR. GREEN:    Good morning, Your Honor.

7                   THE COURT:    Let me see if I can get

8    copies of everything that was set.     All right.   I'm

9    looking at a motion for continuance.      What else is

10   set?

11                  MR. LYDE:    Our motion for summary

12   judgment; and, in that regard, we've also filed

13   objections to some of opposing counsel's summary

14   judgment evidence and the pre-trial.

15                  THE COURT:    All right.    Let's take up

16   the motion for summary judgment; and, depending on

17   how I rule, then we'll take up the continuance.

18                  MR. LYDE:    Now, first of all I'd like

19   to take up the objections if it's okay with the

20   Court?

21                  THE COURT:    Yes.   Go ahead.

22                  MR. LYDE:    The first objection that

23   we'd like to make is to a deposition of one of the

24   Plaintiffs that was filed in the underlying

25   proceeding, a completely different proceeding.
                                                                6

1                      We got it yesterday at 5:02.    Okay?

2    So, the first reason that we are objecting to it is

3    because it was not timely filed.      That's number one.

4    The second reason that we're objecting to it is

5    because it doesn't fall within any of the exceptions

6    to the hearsay rule.

7                      It's being offered on their behalf.

8    It's not being offered against a party opponent.

9    It's not any kind of admission against interest; and,

10   under Rule 206, the underlying proceeding did not

11   involve the same parties.      Loya was not part of that

12   particular lawsuit.

13                     So, that depo is a complete hearsay

14   document.   Of course the way that they could have

15   gotten around it is that they could have filed an

16   affidavit from the client.     They decided not to do

17   that.   They waited until yesterday after 5:00 o'clock

18   and sent us this depo that was taken, of their own

19   client, in the underlying suit; and, we would object

20   to that, Judge.

21                     THE COURT:   All right.   Response

22   Counsel?

23                     MR. GREEN:   Your Honor, the rule, it

24   doesn't require that all of the evidence be filed

25   within the seven days.
                                                                 7

1                     It just requires that a response be

2    filed seven days prior to the hearing.     We filed our

3    response on time and, we filed supplemental responses

4    as we received Mr. Lyde's objections to our evidence.

5                     The deposition testimony that I filed,

6    Your Honor, goes directly to what Mr. Lyde claims is

7    the issue in this case; which are, who was driving

8    the car at the time of the incident that certainly

9    made the basis of the underlying suit.

10                    I've brought for the Court a copy of

11   what I've filed, which is my client's testimony in

12   that case, which was taken under oath, that it was

13   not a man that was driving but a woman, which

14   contradicts the position taken by Loya in this case,

15   Your Honor.

16                    THE COURT:    Typically -- I mean, there

17   isn't anything to keep you from filing the deposition

18   as part of something in support of your response to

19   the motion for summary judgment; but, I will sustain

20   the objection.

21                    MR. LYDE:    Thank you, Your Honor.   Our

22   other two objections are to documents that they filed

23   in their initial response.     One is the police report.

24   It wasn't attempted to be of the underlying case.      It

25   wasn't attempted to be proven up in any way.
                                                                   8

1                     It's not a certified copy.      It's not

2    proven up as a business record.     It's simply a

3    hearsay document.     So, we would object to that one.

4                     THE COURT:    All right.

5                     MR. LYDE:    The second thing is that

6    they are attempting to use the discovery responses of

7    Mrs. Guevara in the underlying case.        And, we'd point

8    out several things to the Court about that.        Number

9    one, she's not a party to this case, except to the

10   extent that she assigned them her rights, which means

11   actually that she's the active Plaintiff in this

12   case.

13                    And so, you can't use your own

14   discovery responses as evidence in the case.        I can

15   use them.    They can't.   And, on top of that, they

16   weren't verified in any way, shape, or form.        They

17   were not signed off by Ms. Guevara in any way, shape,

18   or form.    And, on top of that, even the copies that

19   they provided weren't copies out of a lawsuit or

20   anything like that.     It has not been proven up in any

21   way.    It's simply documents that they've attached

22   with no prove-up as is required for summary judgment

23   evidence.

24                    THE COURT:    All right.    Counsel?

25                    MR. GREEN:    Your Honor, it's an
                                                               9

1    interrogatory that asks, again, the fundamental

2    question:    Who was driving the car at the time of the

3    collision?    And her answer at that time was:   I was

4    driving.

5                     THE COURT:   Why don't you just get her

6    to fill out an affidavit in support of the responses?

7                     MR. GREEN:   Because as Mr. Lyde

8    pointed out, she's no longer a party to this case.

9    So, we've made efforts to get ahold of her since the

10   time that she gave her deposition to Mr. Lyde, but

11   those efforts have not been successful.

12                    So, her only involvement in this case,

13   which is what we were talking about the last time,

14   now that Mr. Lyde -- she's not a party to the case.

15   But, the entire confusion that we were having the

16   last time, whether there was the effort being made to

17   subject my clients to discovery about -- the

18   discussion being who is the proper party to the case.

19                    So, here we've got her interrogatory

20   responses that go to what Mr. Lyde -- frankly, Judge,

21   this is not relevant, and I'm going to show you in

22   the motion for summary judgment why it's not

23   relevant; but, Mr. Lyde wants the Court to accept

24   that the fact question as to who was driving the car

25   has been resolved in his favor.
                                                              10

1                   The position that we are taking is

2    that there is abundant evidence that there is a

3    genuine issue of material fact as it relates to that

4    issue.

5                   THE COURT:    The objections are

6    sustained, Counsel.

7                   MR. LYDE:    Thank you, Your Honor.     As

8    far as the actual motion for summary judgment, the

9    underlying facts, as indicated by our motion for

10   summary judgment, are as follows:

11                  This case concerns an automobile

12   accident that originally occurred back in March 2013.

13   The Hurtado's were in one car --

14                  THE COURT:    I remember.   This is the

15   case where the drivers agreed to state that her

16   husband wasn't driving but that it was her that was

17   driving, that he was not a covered party or insured.

18   Something like that.

19                  MR. LYDE:    Basically, what happened

20   is -- and, again, this is proven by both the recorded

21   statement and the depo and the depo excerpts that we

22   have.

23                  MR. GREEN:    And that's what Loya wants

24   the Court to believe, Judge.   And, I'm going to show

25   the Court later on in my responses, it doesn't matter
                                                                    11

1    what the Court believes in that regards.

2                      MR. LYDE:    All right.   Then, if it

3    doesn't matter, let me tell the Court exactly what

4    she testified to when we took her deposition back in

5    September or October.    Okay?     She said, yes.    I

6    originally claimed that.       The reason was my husband

7    was in the car driving when it happened.       He's an

8    excluded driver.    He got out.     He talked to Hurtados.

9    He explained that he was an excluded driver.         There

10   was no insurance.    I showed up at the scene.       We all

11   got together --

12                     THE COURT:    Well, she wasn't even in

13   the car?

14                     MR. LYDE:    She wasn't even in the car.

15   And, by the way, she said:       I was up in the

16   apartment -- and the apartment is less than a block

17   away -- with my ex-mother-in-law and her sister.          We

18   talked to them and they verified this.       Okay?

19                     You know, the Plaintiffs can contend

20   all they want to, but this is what she testified to

21   and this is the testimony that we gave the Court

22   before this MSJ.    Anyway, they come up with this

23   agreement that we're going to claim that Mrs. Guevara

24   was driving so that there will be insurance coverage.

25                     In fact, that's what they tell the
                                                                     12

1    police officer.     Okay?   The suit doesn't settle.        A

2    lawsuit is filed against Ms. Guevara.         Her depo is

3    getting ready to be taken.      I mean, it's my

4    understanding they were in the room getting ready to

5    give it.   She tells her attorney.        Hey, there's

6    something you need to know.

7                      So, they step outside.      She says, you

8    need to know that I wasn't really the one driving,

9    and we said that so that we have insurance.         Okay?

10   She's not subsequently deposed.         The attorney refuses

11   to tender her.    What happens is Loya --

12                     THE COURT:    Is there an offer made?         I

13   mean, so the original accident -- were the injuries

14   extreme that it didn't settle?

15                     MR. LYDE:    Well, I don't think so;

16   but, there is a summary judgment rendered in that

17   case, and I'll get to that.

18                     THE COURT:    Okay.

19                     MR. GREEN:    And that's what happened

20   is that her lawyer came and said --

21                     MR. LYDE:    I'm giving this

22   presentation.     I'd like to --

23                     (Simultaneous talking, inaudible

24                     responses heard)

25                     MR. LYDE:    I'm giving this
                                                                    13

1    presentation.

2                    MR. GREEN:    And that is what happened

3    is that her lawyer came back and said.         So, she tells

4    this to her lawyer who is employed by Fred Loya,

5    right?

6                    THE COURT:    Okay.

7                    MR. GREEN:    And he goes back to Fred

8    Loya and rats his client out for committing insurance

9    fraud to his employer, Fred Loya.      That's what

10   happened.

11                   THE COURT:    All right.    You may

12   continue.

13                   MR. LYDE:    Okay.    Anyway, Loya sends

14   out an adjuster to Mrs. Guevara, and they take a

15   recorded statement, which has been produced to

16   opposing counsel, and it was used during her

17   deposition also, in which she freely admits that she

18   and her husband and the Hurtados did this,

19   essentially everything that I've just told the Court.

20                   Loya, subsequently, has her defense

21   withdrawn and withdraws coverage.      Both.     Okay?   Mr.

22   Green then takes a summary judgment.       This is after

23   the withdrawal, summary judgment against Ms. Guevara,

24   I think it's for $200,000 a piece against his client;

25   and, he convinces Ms. Guevara to assign any cause of
                                                              14

1    action that she has against Loya for her right for

2    defense to them in exchange for this $400,000

3    judgment.

4                     So, they're basically bringing suit on

5    behalf of Ms. Guevara because the allegation is being

6    made, hey, Loya breached its duty to provide a

7    defense and breached its duty to provide coverage for

8    this accident.   That's basically the lawsuit that

9    we're here about, not the underlying suit where they

10   took an MSJ.

11                    THE COURT:    You really want to take

12   this to trial?

13                    MR. GREEN:    Absolutely.

14                    MR. LYDE:    Okay.   So, we have filed --

15                    MR. GREEN:    I am going to be entitled

16   for summary judgment, and I'm going to show this to

17   the Court.

18                    THE COURT:    Not from what I'm hearing,

19   but I'll hear you out.

20                    MR. LYDE:    And so, we have included

21   Ms. Guevara as a responsible third party.      In

22   addition, we've filed a counterclaim against the

23   Hurtados based collusion and everything else, a dec.

24   (declaratory) action based upon fraud, breach of the

25   contract, all of that kind of things.
                                                                15

1                      Today we have a two-prong MSJ.     We

2    have traditional MSJ on our dec. action that there

3    was no breach of any duty for defense or for coverage

4    as they are claiming; and, that's based upon the

5    deposition of Ms. Guevara.

6                      We also have a no evidence MSJ as to

7    their cause of action being brought against Loya.

8    So, it's two-prong, traditional based upon dec.

9    action and no evidence based upon their claims

10   against us.

11                     THE COURT:    Give me copies of all of

12   the motions.

13                     THE CLERK:    Yes, Your Honor.

14                     THE COURT:    All right.

15                     MR. LYDE:    Basically, opposing

16   counsel, in their response, they brought up three

17   issues.     The first one deals with the traditional

18   motion for summary judgment based on the dec. action.

19   The second one deals solely with the no evidence

20   summary judgment based upon the claims that they are

21   making against us; and, the third one deals with

22   both.     The argument that they are making against the

23   traditional motion for summary judgment as to the

24   dec. action is that not enough time has passed for

25   discovery.     Okay?
                                                                 16

1                    They're making that solely against

2    that particular cause of action.       This case is set for

3    trial on the 21st.    The docket control order was

4    entered in August of last year.       It was signed off by

5    all parties to my knowledge.       Okay?   And I think it

6    constituted a Rule 11.

7                    THE COURT:    Okay.

8                    MR. LYDE:    And I'll represent to the

9    Court that we are the ones that have been pushing

10   discovery in the case.     Okay?    We're the ones that

11   took the depo of Ms. Guevara, and I really hoped that

12   after this depo was taken that this case would go

13   away.   It did not.   But that's okay.

14                   Now, with regards to that argument

15   that there has not been enough time, I do not think

16   it's fair for them to say we haven't had a chance to

17   do all of the discovery, when there haven't even been

18   requests for production, interrogatories, or requests

19   for admissions about it.

20                   I don't think it's fair for them to

21   make that argument that we haven't had a chance when

22   those things haven't happened.       So, that's our

23   response with regards to the there hasn't been enough

24   time.

25                   THE COURT:    Let me see the docket
                                                            17

1    sheet.

2                   MR. LYDE:   As to the traditional

3    summary judgment based upon the dec. action, what

4    they are essentially attempting to argue is that Loya

5    has somehow waived their right to file a dec. action

6    based upon no coverage and no right to defend.

7                   We -- again, I think that that

8    argument, Your Honor, has no basis; and, that's not

9    only upon the case law, but also Section 37 of the

10   Texas Civil Practice & Remedies Code, which

11   specifically sets out when dec. actions can be filed.

12                  An insurance policy is a contract, and

13   under 37.004, it plainly says, a contract may be

14   construed either before or after there has been a

15   breach.

16                  So, by Section 37 alone we're entitled

17   to file a dec. action; and, in addition in that

18   regard, we would cite the Court to the Texas Supreme

19   Court case of Bonham State Bank versus Beadle which

20   is found at 907 S.W.2d 465.   It has some great

21   language that I'll be happy to read to the Court

22   about when a dec. action is appropriate, talking

23   about whether there's a justiciable controversy,

24   which there is in this case, obviously; a genuine

25   conflict of tangible interest, which there obviously
                                                                 18

1    is.

2                    I mean, this is exactly what we have

3    here.   So, I think that the argument that, well, the

4    dec. action has somehow been waived, that is not a

5    good argument either.

6                    The argument that they are making as

7    to both the traditional MSJ and the no evidence MSJ,

8    it has to do with the right to defend; and, I really

9    think it might be better, as far as the presentation

10   to the Court, if they give their argument on that and

11   then I respond, because I do have some things that

12   I'd like to say about that.

13                   MR. GREEN:    I think that's a good

14   idea, Judge.

15                   THE COURT:    All right.    Counsel?

16                   MR. GREEN:    For the Court to grant

17   their summary judgment, you're going to have to rule

18   on the affirmative on four different issues, Judge.

19   The first are -- the first issue is:       Are the facts

20   resolved in favor of Fred Loya?    And we've talked

21   about that at length, and I'll address it more

22   specifically here in a second.    The second is:       If

23   the facts are resolved, did Fred Loya owe their

24   insured at the time the duty to defend her.

25                   So, we're going to go through the case
                                                                 19

1    law.   At that point you'd have to answer in the

2    affirmative to grant their summary judgment that they

3    owed no duty.   I mean, you are also going to have to

4    decide whether there is a justiciable --

5                    THE COURT:    I mean, why would they owe

6    a duty?

7                    MR. GREEN:    Why would they owe duty?

8                    THE COURT:    Right.   Why would they owe

9    a duty to defend an excluded driver?

10                   MR. GREEN:    She wasn't an excluded

11   driver, Your Honor.   Why do you believe that?

12                   THE COURT:    Well, isn't that her sworn

13   testimony?

14                   MR. LYDE:    It is, Your Honor.

15                   MR. GREEN:    There is sworn testimony

16   to the contrary.

17                   THE COURT:    Where is that?

18                   MR. GREEN:    Res judicata.

19                   THE COURT:    Counsel, where?     I other

20   words, did you respond to their motion for summary

21   judgment and give me some sort of controverting

22   evidence to the fact that she was driving?       Because

23   he has evidence that she wasn't driving.       He has her

24   sworn testimony in a deposition.

25                   Apparently, he has evidence that she
                                                               20

1    was with her in-laws a block away.      So, I have

2    evidence that she wasn't driving.      Their motion for

3    summary judgment on your claim looks valid to me,

4    unless you give me something else.

5                   MR. GREEN:     Okay.    It's irrelevant as

6    to who was driving the car.    I'm going to explain

7    this to you.

8                   THE COURT:     All right.

9                   MR. GREEN:     I recognize that you

10   believe that she was not the driver of the car, even

11   though there is sworn evidence to the contrary.

12                  THE COURT:     I'm asking you to show me

13   where is the sworn testimony or the evidence that she

14   was driving?

15                  MR. GREEN:     I handed it to you a

16   second ago in my client's deposition that was taken

17   in the underlying --

18                  THE COURT:     All right, but I've

19   sustained the objections because that's not part of

20   the summary judgment evidence.

21                  MR. GREEN:     Right.    So, it had been my

22   position that there was a genuine issue of material

23   fact with regards to who was driving the car.        Except

24   there isn't because who was driving the car was the

25   subject of an earlier lawsuit.    Okay?
                                                                   21

1                      Res judicata, Judge, is the concept,

2    the doctrine which creates the situation by which

3    courts cannot try facts twice.       Okay?    There are two

4    parts of res judicata.      One is collateral estoppel;

5    and, the second is issue preclusion.         Collateral

6    estoppel is:   You can't go try the same case in a

7    different court a second time, which is why we have

8    friendly suits.

9                      Your Honor, you see these friendly

10   suits, I'm sure, every single day where they parade

11   the parents and the children in front of the Court to

12   ask them:   Are you sure?      Are you not hurt?

13                     THE COURT:    But what does that have to

14   do with this case?

15                     MR. GREEN:    Because that's the

16   protection that is provided to an insurance company

17   because they can't bring a separate lawsuit.

18                     THE COURT:    But you're asking me to

19   find that Loya Insurance had a duty to defend an

20   excluded driver?

21                     MR. GREEN:    That's the law, Judge.

22                     THE COURT:    How is that the law?

23                     MR. GREEN:    So, res judicata makes it

24   such that this issue:    Who was driving the car?         That

25   cannot be tried again.
                                                                 22

1                      It was tried once.     It cannot be tried

2    again.     The issue of who was driving the car and

3    whether or not she was negligent was tried in Osvaldo

4    Hurtado Avalos versus Karla Lizette Guevara.

5                      That issue, Judge, has been decided

6    and issued preclusion.        Res judicata prevents the

7    Court from taking this issue up again.        It would be

8    like if the minor in the friendly suit shows up when

9    they turn 18 to file a suit against the insurance

10   company.     The insurance company would come into court

11   and say, this issue --

12                     THE COURT:     Counsel, the evidence that

13   I have and that I've been hearing, the entire time,

14   has been that the Hurtados and these other people,

15   the Guevaras, that they lied in order to get

16   insurance coverage.       That is the evidence.   That is

17   clear before the Court.        That is clear before the

18   Court.     That is clear.

19                     MR. GREEN:     I respectfully disagree,

20   Judge; but, even if it is a clear, there is a

21   doctrine in the State of Texas called the eight

22   corners rule.     Okay?     The eight corners rule stands

23   for the proposition that an insurance company, in

24   determining whether or not there is coverage and

25   whether or not there's a duty to defend, it looks at
                                                            23

1    two documents and only two documents; the pleadings

2    and the insurance policy.

3                   Insurance companies are supposed to

4    compare those two documents; and, if there is a

5    covered claim within that document, insurance

6    companies are to provide coverage.    I've got the

7    Supreme Court case of Guideone Elite Insurance

8    Company, which stands for the proposition that there

9    is no exception to the eight corners doctrine.

10                  There is no argument.     What is

11   undisputed in this case is that in the underlying

12   case our petition stated that Karla Flores, the

13   insured, was the driver and was negligent in causing

14   the wreck.

15                  THE COURT:   All right.

16                  MR. GREEN:   Okay?    And that there was

17   a denial of coverage, even though her insurance

18   policy made her a covered person.

19                  There is a case, Your Honor, it's

20   Corinth Investors Holdings versus Evanston Insurance

21   Company that says, when an insurance company is

22   analyzing whether or not there is a duty to defend,

23   all doubts regarding the duty to defend are resolved

24   in favor of the insured, and the pleadings are

25   construed liberally.
                                                               24

1                      So, any doubts are construed in favor

2    of the insured.    And, here is what is important,

3    Judge, okay, because he's saying there was no duty to

4    defend because there's fraud.     Okay?   This court,

5    okay, when interpreting the eight corners doctrine,

6    it says, under no circumstances may a court consider

7    extrinsic evidence that contradicts the pleadings.

8                      That means, the pleadings and the

9    insurance policy are the two documents, those eight

10   corners, that dictate whether or not there is

11   insurance coverage.     It is undisputable that she was

12   a covered person and that had she been the driver of

13   the car --

14                     THE COURT:   But she was not the

15   driver, Counsel.     You're asking me to help you

16   perpetuate a fraud.     That's what you're asking this

17   Court to do.   What I don't understand is that the

18   undisputed facts in this case showed that the

19   Hurtados and Guevaras lied about Ms. Guevara being

20   the driver in the car.

21                     She admits, under oath, I was not the

22   driver of the car.     I wasn't even in the car.     I came

23   up with this plot, with the Hurtados, so that I could

24   get insurance coverage.

25                     So, you are basically asking this
                                                                25

1    Court to ignore every rule of justice and help your

2    client's perpetuate a fraud.

3                      MR. GREEN:   I'm asking you to right a

4    wrong.     Insurance companies have a duty.   It it were

5    true that she was not driving --

6                      THE COURT:   Counsel, the only people

7    that are doing something wrong in this case are the

8    Hurtados and the Guevaras that came up with this

9    scheme.

10                     MR. GREEN:   I respectfully disagree.

11   Your Honor, I respectfully disagree.     I have a client

12   to represent.     My client has sworn to the exact

13   opposite.

14                     THE COURT:   Show me where your client

15   swore to the exact opposite, because I've just read

16   Mrs. Guevara's deposition taken in September where

17   she says, under oath, I lied.     I was not driving.

18   Show me where?     Because in response to the summary

19   judgment that was filed by Loya Insurance, I don't

20   see any.

21                     MR. GREEN:   Let me ask you this:    Had

22   she not been driving, if the facts were exactly --

23                     THE COURT:   She was not driving.

24                     MR. GREEN:   But let's assume for

25   purposes of this hearing, and although I disagree
                                                              26

1    with --

2                    THE COURT:    Give me evidence that she

3    was driving.

4                    MR. GREEN:    I have my client's sworn

5    testimony to the contrary.

6                    THE COURT:    There is no evidence that

7    you've given to me in response to the summary

8    judgment.

9                    MR. GREEN:    I'm assuming, for purposes

10   of this hearing, that she wasn't driving.       Okay?

11   Let's say I, in representing Osvaldo Hurtado Avalos,

12   sued her, okay, and there was no evidence that she

13   was driving; but, I sued her anyway.       Would Fred Loya

14   have to answer that lawsuit?

15                   THE COURT:    All right, Counsel, I've

16   heard enough.   Anything else from you?

17                   MR. LYDE:    No, Your Honor.

18                   THE COURT:    All right.    I'll take

19   everything under advisement and I'll give you my

20   ruling by tomorrow.

21                   MR. LYDE:    Okay.   We have the -- very

22   good, Your Honor.     Thank you.   May I be excused?

23                   THE COURT:    I'll do it by tomorrow

24   morning.

25                   MR. LYDE:    Thank you, Your Honor.
                                                                27

1                   MR. GREEN:     Do you want to take up the

2    motion for continuance in light of the fact that you

3    may not grant the summary judgment?

4                   THE COURT:     Counsel, I mean, as far as

5    your continuance goes, that's denied.      This case has

6    been on file since May.    You've had plenty of time to

7    conduct discovery.    This case apparently goes even

8    further back because of that other pre-existing case.

9    So, continuance is denied.    It stays on for trial,

10   assuming I don't dispose of it.

11                  MR. LYDE:     Thank you, Your Honor.

12                  THE COURT:     All right.   Thank you,

13   Counsel.

14                  (Whereupon other matters were heard

15                  before the Court)

16

17                        *-*-*-*-*-*-*-*-*-*

18                    PROCEEDINGS CONCLUDED

19                        *-*-*-*-*-*-*-*-*-*

20

21

22

23

24

25
                                                           28

1    THE STATE OF TEXAS      )

2    COUNTY OF WEBB          )

3

4                    I, Vicente Mendoza, Official Court
     Reporter for the 111th District Court, Webb County,
5    State of Texas, do hereby certify that the above and
     foregoing contains a true and correct transcription
6    of all portions of evidence and other proceedings
     requested in writing by counsel for the parties to be
7    included in this volume of the Reporter's Record, in
     the above-styled and numbered cause, all of which
8    occurred in open court or in chambers and were
     reported by me.
9
                    I further certify that the Reporter's
10   Record of the proceedings truly and correctly
     reflects the exhibits, if any, admitted by the
11   respective parties.

12                   I further certify that the total cost
     for the preparation of this Reporter's Record is $See
13   Original printed transcript, Volume 1 and was
     paid/will be paid by The Green Law Firm, P.C. by
14   Leticia Garza.

15                  WITNESS MY OFFICIAL HAND this the 9th
     day of February, 2017.
16

17

18

19

20

21

22               _________________________________
                 Vicente Mendoza, Texas CSR #6918
23                  Expiration Date: 12/31/2018
          Official Court Reporter - 111th District Court
24                1110 Victoria Street, Suite 301
                         Laredo, Texas 78040
25            Office (956) 523-4229 Fax (956)523-5088
                                                                                                                                         1

           #                                          admitted [1] - 28:10        basis [2] - 7:9, 17:8        23:5
                                      4
                                                      advisement [1] -            Beadle [1] - 17:19          claimed [1] - 11:6
#6918 [2] - 1:23, 28:22   4 [3] - 1:1, 3:4             26:19                      behalf [2] - 6:7, 14:5      claiming [1] - 15:4
                          465 [1] - 17:20             affidavit [2] - 6:16, 9:6   believes [1] - 11:1         claims [3] - 7:6, 15:9,
           $                                          ago [1] - 20:16             better [1] - 18:9            15:20
                                      5               agreed [1] - 10:15          block [2] - 11:16, 20:1     clear [4] - 22:17,
$200,000 [1] - 13:24                                  agreement [1] - 11:23       Bonham [1] - 17:19           22:18, 22:20
$400,000 [1] - 14:2       523-4229 [2] - 1:25,        ahead [1] - 5:21            breach [3] - 14:24,         CLERK [1] - 15:13
                           28:25                      ahold [1] - 9:9              15:3, 17:15                client [7] - 6:16, 6:19,
           0              523-5088 [1] - 1:25         allegation [1] - 14:5       breached [2] - 14:6,         13:8, 13:24, 25:11,
                          542-7000 [1] - 2:5          alone [1] - 17:16            14:7                        25:12, 25:14
04-17-00070-CV [1] -      542-7026 [1] - 2:6          analyzing [1] - 23:22       bring [1] - 21:17           client's [4] - 7:11,
 1:2                      5:00 [1] - 6:17             AND [1] - 1:4               bringing [1] - 14:4          20:16, 25:2, 26:4
                          5:02 [1] - 6:1              answer [3] - 9:3, 19:1,     brought [3] - 7:10,         clients [1] - 9:17
           1                                           26:14                       15:7, 15:16                Code [1] - 17:10

1 [2] - 3:3, 28:13
                                      7               anticipate [1] - 4:18       Brownsville [1] - 2:5       collateral [2] - 21:4,
                                                      ANTONIO [1] - 1:4           business [1] - 8:2           21:5
10th [1] - 2:9            78040 [2] - 1:24, 28:24                                                             collision [1] - 9:3
                                                      anyway [2] - 11:22,
11 [1] - 16:6             78520 [1] - 2:5
1110 [2] - 1:24, 28:24
                                                       26:13                                 C                collusion [1] - 14:23
                          78541 [1] - 2:10            Anyway [1] - 13:13                                      committing [1] - 13:8
111th [3] - 4:5, 28:4,                                                            cannot [3] - 21:3,          companies [3] - 23:3,
                                                      apartment [2] - 11:16
 28:23                                9                                            21:25, 22:1                 23:6, 25:4
                                                      APPEAL [1] - 1:2
111TH [2] - 1:8, 1:23                                                             car [17] - 7:8, 9:2,        COMPANY [1] - 1:8
                                                      Appearances [1] - 3:3
12/31/2018 [1] - 28:23    907 [1] - 17:20                                          9:24, 10:13, 11:7,         Company [2] - 23:8,
                                                      appropriate [1] -
12712700 [1] - 2:8        956 [7] - 1:25, 2:5, 2:6,                                11:13, 11:14, 20:6,         23:21
                                                       17:22
18 [1] - 22:9              2:10, 2:11, 28:25                                       20:10, 20:23, 20:24,       company [7] - 4:14,
                                                      argue [1] - 17:4
                          956)523-5088 [1] -                                       21:24, 22:2, 24:13,         5:4, 21:16, 22:10,
                                                      argument [9] - 15:22,
           2               28:25
                                                       16:14, 16:21, 17:8,         24:20, 24:22                22:23, 23:21
                          9:04 [1] - 4:7                                          Case [2] - 3:3, 5:2         compare [1] - 23:4
                                                       18:3, 18:5, 18:6,
2 [4] - 1:11, 3:2, 3:3,   9th [1] - 28:15                                         case [33] - 7:7, 7:12,
                                                       18:10, 23:10                                           complete [1] - 6:13
 4:7                                                                               7:14, 7:24, 8:7, 8:9,
                                                      AS [1] - 1:4                                            completely [1] - 5:25
20 [1] - 4:19                         A                                            8:12, 8:14, 9:8, 9:12,
                                                      assign [1] - 13:25                                      Computer [1] - 1:20
2013 [1] - 10:12                                                                   9:14, 9:18, 10:11,
                                                      assigned [1] - 8:10                                     Computer-Assisted
2016-CVT-001431 [2]       a.m. [1] - 4:7                                           10:15, 12:17, 16:2,
                                                      ASSIGNEES [1] - 1:4                                      [1] - 1:20
 - 4:14, 5:4              above-entitled [1] -                                     16:10, 16:12, 17:9,
                                                      Assisted [1] - 1:20                                     Computerized [1] -
2016-CVT-001431-D          1:15                                                    17:19, 17:24, 18:25,
                                                      assume [1] - 25:24                                       1:18
 2 [1] - 1:2              above-styled [1] -                                       21:6, 21:14, 23:7,
                                                      assuming [2] - 26:9,                                    concept [1] - 21:1
2017 [5] - 1:11, 1:13,     28:7                                                    23:11, 23:12, 23:19,
                                                       27:10                                                  concerns [1] - 10:11
 3:2, 4:7, 28:15          absolutely [1] - 14:13                                   24:18, 25:7, 27:5,
                                                      attached [1] - 8:21                                     CONCLUDED [1] -
202 [1] - 2:9             abundant [1] - 10:2                                      27:7, 27:8
                                                      attempted [2] - 7:24,                                    27:18
206 [1] - 6:10            accept [1] - 9:23                                       CAUSE [1] - 1:2
                                                       7:25                                                   Concluded [1] - 3:5
21st [1] - 16:3           accident [3] - 10:12,                                   causing [1] - 23:13
                                                      attempting [2] - 8:6,                                   conduct [1] - 27:7
24038023 [1] - 2:3         12:13, 14:8                                            certainly [1] - 7:8
                                                       17:4                                                   conflict [1] - 17:25
27 [1] - 3:5              action [13] - 14:1,                                     Certificate [1] - 3:5
                                                      attorney [2] - 12:5,                                    confusion [1] - 9:15
28 [1] - 3:5               14:24, 15:2, 15:7,                                     certified [1] - 8:1
                                                       12:10                                                  consider [1] - 24:6
2nd [1] - 1:13             15:9, 15:18, 15:24,                                    certify [3] - 28:5, 28:9,
                                                      August [1] - 16:4                                       constituted [1] - 16:6
                           16:2, 17:3, 17:5,                                       28:12
                                                      automobile [1] - 10:11                                  construed [3] - 17:14,
           3               17:17, 17:22, 18:4
                                                      Avalos [4] - 4:13, 5:3,
                                                                                  chambers [1] - 28:8          23:25, 24:1
                          actions [1] - 17:11                                     chance [2] - 16:16,
                                                       22:4, 26:11                                            contains [1] - 28:5
3 [1] - 3:4               active [1] - 8:11                                        16:21
                                                      AVALOS [1] - 1:3                                        contend [1] - 11:19
30 [2] - 4:19, 4:20       actual [1] - 10:8                                       children [1] - 21:11
                                                      Avenue [1] - 2:9                                        continuance [5] - 5:9,
301 [2] - 1:24, 28:24     addition [2] - 14:22,                                   CHRONOLOGICAL                5:17, 27:2, 27:5,
34 [1] - 2:4               17:17                                                   [1] - 3:1
37 [2] - 17:9, 17:16      address [1] - 18:21                     B               Chronological [1] -
                                                                                                               27:9
                                                                                                              continue [1] - 13:12
37.004 [1] - 17:13        adjuster [1] - 13:14                                     3:4
                                                      BAILIFF [1] - 4:4                                       contract [3] - 14:25,
381-0725 [1] - 2:11       admission [1] - 6:9                                     circumstances [1] -
                                                      Bank [1] - 17:19                                         17:12, 17:13
381-6602 [1] - 2:10       admissions [1] -                                         24:6
                                                      based [9] - 14:23,                                      contradicts [2] - 7:14,
                           16:19                                                  cite [1] - 17:18
                                                       14:24, 15:4, 15:8,                                      24:7
                          admits [2] - 13:17,                                     Civil [1] - 17:10
                                                       15:9, 15:18, 15:20,                                    contrary [3] - 19:16,
                           24:21                                                  claim [3] - 11:23, 20:3,
                                                       17:3, 17:6                                              20:11, 26:5
                                                                                                                                       2
control [1] - 16:3          24:4, 24:6, 28:8          1:8, 1:23                   19:23, 19:25, 20:2,       Firm [2] - 2:4, 28:13
controversy [1] -          Court's [1] - 4:11        District [3] - 4:5, 28:4,    20:11, 20:13, 20:20,      first [6] - 5:18, 5:22,
 17:23                     courts [1] - 21:3          28:23                       22:12, 22:16, 24:7,         6:2, 15:17, 18:19
controverting [1] -        coverage [11] - 11:24,    docket [4] - 4:11,           26:2, 26:6, 26:12,        Flores [1] - 23:12
 19:21                      13:21, 14:7, 15:3,        4:22, 16:3, 16:25           28:6                      FLORES [1] - 1:4
convinces [1] - 13:25       17:6, 22:16, 22:24,      doctrine [4] - 21:2,        ex [1] - 11:17             following [2] - 1:14,
copies [4] - 5:8, 8:18,     23:6, 23:17, 24:11,       22:21, 23:9, 24:5          ex-mother-in-law [1] -       4:2
 8:19, 15:11                24:24                    document [3] - 6:14,         11:17                     follows [1] - 10:10
copy [2] - 7:10, 8:1       covered [4] - 10:17,       8:3, 23:5                  exact [2] - 25:12,         FOR [2] - 2:2, 2:7
Coria [1] - 2:4             23:5, 23:18, 24:12       documents [6] - 7:22,        25:15                     foregoing [1] - 28:5
Corinth [1] - 23:20        creates [1] - 21:2         8:21, 23:1, 23:4,          exactly [3] - 11:3,        form [2] - 8:16, 8:18
corners [5] - 22:22,       CSR [2] - 1:23, 28:22      24:9                        18:2, 25:22               four [1] - 18:18
 23:9, 24:5, 24:10                                   doubts [2] - 23:23,         Except [1] - 20:23         frankly [1] - 9:20
correct [1] - 28:5                    D               24:1                       except [1] - 8:9           fraud [5] - 13:9, 14:24,
correctly [1] - 28:10                                driver [11] - 11:8, 11:9,   exception [1] - 23:9         24:4, 24:16, 25:2
cost [1] - 28:12           Date [1] - 28:23           19:9, 19:11, 20:10,        exceptions [1] - 6:5       Fred [6] - 13:4, 13:7,
Counsel [8] - 6:22,        days [2] - 6:25, 7:2       21:20, 23:13, 24:12,       excerpts [1] - 10:21         13:9, 18:20, 18:23,
 10:6, 19:19, 24:15,       deals [3] - 15:17,         24:15, 24:20, 24:22        exchange [1] - 14:2          26:13
 25:6, 26:15, 27:4,         15:19, 15:21             drivers [1] - 10:15         excluded [5] - 11:8,       freely [1] - 13:17
 27:13                     dec. [11] - 14:23,        driving [26] - 7:7, 7:13,    11:9, 19:9, 19:10,        friendly [3] - 21:8,
counsel [6] - 8:24,         15:2, 15:8, 15:18,        9:2, 9:4, 9:24, 10:16,      21:20                       21:9, 22:8
 13:16, 15:16, 18:15,       15:24, 17:3, 17:5,        10:17, 11:7, 11:24,        excused [1] - 26:22        front [1] - 21:11
 22:12, 28:6                17:11, 17:17, 17:22,      12:8, 19:22, 19:23,        exhibits [1] - 28:10       fundamental [1] - 9:1
counsel's [1] - 5:13        18:4                      20:2, 20:6, 20:14,         existing [1] - 27:8
                           decide [1] - 19:4          20:23, 20:24, 21:24,
counterclaim [1] -
                           decided [2] - 6:16,        22:2, 25:5, 25:17,
                                                                                 Expiration [1] - 28:23                G
 14:22                                                                           explain [1] - 20:6
COUNTY [2] - 1:6,           22:5                      25:22, 25:23, 26:3,        explained [1] - 11:9       Garza [1] - 28:14
 28:2                      declaratory [1] - 14:24    26:10, 26:13               extent [1] - 8:10          genuine [3] - 10:3,
County [2] - 1:17, 28:4    defend [9] - 17:6,        during [1] - 13:16          extreme [1] - 12:14         17:24, 20:22
course [1] - 6:14           18:8, 18:24, 19:9,       duty [14] - 14:6, 14:7,     extrinsic [1] - 24:7       given [1] - 26:7
Court [35] - 3:5, 4:3,      21:19, 22:25, 23:22,      15:3, 18:24, 19:3,                                    grant [3] - 18:16, 19:2,
                            23:23, 24:4               19:6, 19:7, 19:9,
 4:5, 4:12, 5:1, 5:20,
                           DEFENDANT [2] - 1:8,       21:19, 22:25, 23:22,
                                                                                            F                27:3
 7:10, 8:8, 9:23,                                                                                           great [1] - 17:20
 10:24, 10:25, 11:1,        2:7                       23:23, 24:3, 25:4          fact [6] - 9:24, 10:3,     GREEN [33] - 4:24,
 11:3, 11:21, 13:19,       defense [4] - 13:20,                                    11:25, 19:22, 20:23,      5:6, 6:23, 8:25, 9:7,
 14:17, 16:9, 17:18,        14:2, 14:7, 15:3                     E                 27:2                      10:23, 12:19, 13:2,
 17:19, 17:21, 18:10,      denial [1] - 23:17                                    facts [6] - 10:9, 18:19,    13:7, 14:13, 14:15,
 18:16, 21:11, 22:7,       denied [2] - 27:5, 27:9   Edinburg [1] - 2:10           18:23, 21:3, 24:18,       18:13, 18:16, 19:7,
 22:17, 22:18, 23:7,       depo [7] - 6:13, 6:18,    effort [1] - 9:16             25:22                     19:10, 19:15, 19:18,
 24:17, 25:1, 27:15,        10:21, 12:2, 16:11,      efforts [2] - 9:9, 9:11     fair [2] - 16:16, 16:20     20:5, 20:9, 20:15,
 28:4, 28:4, 28:23          16:12                    eight [5] - 22:21,          fall [1] - 6:5              20:21, 21:15, 21:21,
COURT [55] - 1:2, 1:3,     deposed [1] - 12:10        22:22, 23:9, 24:5,         far [3] - 10:8, 18:9,       21:23, 22:19, 23:16,
 1:23, 4:8, 4:13, 4:16,    deposition [10] - 5:23,    24:9                         27:4                      25:3, 25:10, 25:21,
 4:21, 5:3, 5:7, 5:15,      7:5, 7:17, 9:10, 11:4,   either [2] - 17:14, 18:5    favor [4] - 9:25, 18:20,    25:24, 26:4, 26:9,
 5:21, 6:21, 7:16, 8:4,     13:17, 15:5, 19:24,      Elite [1] - 23:7              23:24, 24:1               27:1
 8:24, 9:5, 10:5,           20:16, 25:16             employed [1] - 13:4         FAX [3] - 1:25, 2:6,       Green [4] - 2:3, 2:4,
 10:14, 11:12, 12:12,      determining [1] -         employer [1] - 13:9           2:11                      13:22, 28:13
 12:18, 13:6, 13:11,        22:24                    entered [1] - 16:4          Fax [1] - 28:25            Guevara [13] - 8:7,
 14:11, 14:18, 15:11,      dictate [1] - 24:10       entire [2] - 9:15, 22:13    February [4] - 1:11,        8:17, 11:23, 12:2,
 15:14, 16:7, 16:25,       different [3] - 5:25,     entitled [3] - 1:15,          1:13, 4:7, 28:15          13:14, 13:23, 13:25,
 18:15, 19:5, 19:8,         18:18, 21:7               14:15, 17:16               FEBRUARY [1] - 3:2          14:5, 14:21, 15:5,
 19:12, 19:17, 19:19,      directly [1] - 7:6        essentially [2] - 13:19,    file [4] - 17:5, 17:17,     16:11, 22:4, 24:19
 20:8, 20:12, 20:18,       disagree [4] - 22:19,      17:4                         22:9, 27:6               GUEVARA [1] - 1:5
 21:13, 21:18, 21:22,       25:10, 25:11, 25:25      estoppel [2] - 21:4,        filed [16] - 5:12, 5:24,   Guevara's [1] - 25:16
 22:12, 23:15, 24:14,      discovery [7] - 8:6,       21:6                         6:3, 6:15, 6:24, 7:2,    Guevaras [3] - 22:15,
 25:6, 25:14, 25:23,        8:14, 9:17, 15:25,       Evanston [1] - 23:20          7:3, 7:5, 7:11, 7:22,     24:19, 25:8
 26:2, 26:6, 26:15,         16:10, 16:17, 27:7       evidence [24] - 5:14,         12:2, 14:14, 14:22,      Guideone [1] - 23:7
 26:18, 26:23, 27:4,       discussion [1] - 9:18      6:24, 7:4, 8:14, 8:23,       17:11, 25:19
 27:12                     dispose [1] - 27:10        10:2, 15:6, 15:9,          filing [1] - 7:17
court [5] - 21:7, 22:10,   DISTRICT [3] - 1:3,        15:19, 18:7, 19:22,        fill [1] - 9:6
                                                                                                                                       3
                            22:10, 22:16, 22:23,     keep [1] - 7:17             material [2] - 10:3,       Notzon [1] - 4:6
           H
                            23:2, 23:3, 23:5,        kind [2] - 6:9, 14:25        20:22                     NOTZON [1] - 1:16
HAND [1] - 28:15            23:17, 23:21, 24:9,      knowledge [1] - 16:5        matter [2] - 10:25,        number [2] - 6:3, 8:8
handed [1] - 20:15          24:11, 24:24, 25:4                                    11:3                      Number [2] - 4:14, 5:4
happy [1] - 17:21         INSURANCE [1] - 1:8                    L               matters [3] - 4:10,        numbered [2] - 1:15,
Haynes [1] - 2:9          Insurance [6] - 4:14,                                   4:25, 27:14                28:7
hear [1] - 14:19            5:4, 21:19, 23:7,        language [1] - 17:21        mean [7] - 7:16, 12:3,
heard [6] - 1:14, 4:11,     23:20, 25:19             LAREDO [1] - 1:24            12:13, 18:2, 19:3,                   O
 4:25, 12:24, 26:16,      insured [5] - 10:17,       Laredo [2] - 1:16,           19:5, 27:4
 27:14                      18:24, 23:13, 23:24,       28:24                     means [2] - 8:10, 24:8     o'clock [1] - 6:17
hearing [5] - 7:2,          24:2                     last [3] - 9:13, 9:16,      Mendoza [2] - 28:4,        oath [3] - 7:12, 24:21,
 14:18, 22:13, 25:25,     interest [2] - 6:9,          16:4                       28:22                      25:17
 26:10                      17:25                    law [5] - 11:17, 17:9,      MENDOZA [1] - 1:23         object [2] - 6:19, 8:3
hearsay [3] - 6:6,        interpreting [1] - 24:5      19:1, 21:21, 21:22        might [1] - 18:9           objecting [2] - 6:2, 6:4
 6:13, 8:3                interrogatories [1] -      Law [2] - 2:4, 28:13        minor [1] - 22:8           objection [2] - 5:22,
held [1] - 1:16             16:18                    laws [1] - 20:1             minutes [1] - 4:19          7:20
help [2] - 24:15, 25:1    interrogatory [2] - 9:1,   lawsuit [7] - 6:12,         MONICA [1] - 1:16          objections [6] - 5:13,
hereby [1] - 28:5           9:19                       8:19, 12:2, 14:8,         Monica [1] - 4:6            5:19, 7:4, 7:22, 10:5,
Holdings [1] - 23:20      Investors [1] - 23:20        20:25, 21:17, 26:14       morning [5] - 4:8,          20:19
Honor [21] - 4:15,        involve [1] - 6:11         lawyer [3] - 12:20,          4:15, 5:5, 5:6, 26:24     obviously [2] - 17:24,
 4:24, 5:5, 5:6, 6:23,    involvement [1] - 9:12       13:3, 13:4                mother [1] - 11:17          17:25
 7:6, 7:15, 7:21, 8:25,   irrelevant [1] - 20:5      length [1] - 18:21          motion [13] - 4:17, 5:9,   occurred [2] - 10:12,
 10:7, 15:13, 17:8,       issue [11] - 7:7, 10:3,    less [1] - 11:16             5:11, 5:16, 7:19,          28:8
 19:11, 19:14, 21:9,        10:4, 18:19, 20:22,      Leticia [1] - 28:14          9:22, 10:8, 10:9,         October [1] - 11:5
 23:19, 25:11, 26:17,       21:5, 21:24, 22:2,       liberally [1] - 23:25        15:18, 15:23, 19:20,      OF [4] - 1:1, 1:4, 28:1,
 26:22, 26:25, 27:11        22:5, 22:7, 22:11        lied [3] - 22:15, 24:19,     20:2, 27:2                 28:2
Honorable [2] - 1:15,     issued [1] - 22:6            25:17                     motions [1] - 15:12        offer [1] - 12:12
 4:6                      issues [2] - 15:17,        light [1] - 27:2            MR [60] - 4:15, 4:18,      offered [2] - 6:7, 6:8
hoped [1] - 16:11           18:18                    Lizette [1] - 22:4           4:23, 4:24, 5:5, 5:6,     OFFICE [1] - 1:25
hurt [1] - 21:12                                     LLP [1] - 2:9                5:11, 5:18, 5:22,         Office [1] - 28:25
Hurtado [4] - 4:13,                   J              looking [1] - 5:9            6:23, 7:21, 8:5, 8:25,    officer [1] - 12:1
 5:3, 22:4, 26:11                                    looks [2] - 20:3, 22:25      9:7, 10:7, 10:19,         Official [2] - 28:4,
HURTADO [2] - 1:3,        John [1] - 2:8             LOYA [1] - 1:8               10:23, 11:2, 11:14,        28:23
 1:4                      Jorge [1] - 2:3            Loya [20] - 4:14, 5:4,       12:15, 12:19, 12:21,      OFFICIAL [2] - 1:23,
Hurtado's [1] - 10:13     Judge [12] - 1:16, 4:6,      6:11, 7:14, 10:23,         12:25, 13:2, 13:7,         28:15
Hurtados [7] - 11:8,        6:20, 9:20, 10:24,         12:11, 13:4, 13:8,         13:13, 14:13, 14:14,      once [1] - 22:1
 13:18, 14:23, 22:14,       18:14, 18:18, 21:1,        13:9, 13:13, 13:20,        14:15, 14:20, 15:15,      one [11] - 5:23, 6:3,
 24:19, 24:23, 25:8         21:21, 22:5, 22:20,        14:1, 14:6, 15:7,          16:8, 17:2, 18:13,         7:23, 8:3, 8:9, 10:13,
husband [3] - 10:16,        24:3                       17:4, 18:20, 18:23,        18:16, 19:7, 19:10,        12:8, 15:17, 15:19,
 11:6, 13:18              judgment [25] - 5:12,        21:19, 25:19, 26:13        19:14, 19:15, 19:18,       15:21, 21:4
                            5:14, 5:16, 7:19,        Lyde [8] - 2:8, 2:9, 7:6,    20:5, 20:9, 20:15,        ones [2] - 16:9, 16:10
                            8:22, 9:22, 10:8,                                     20:21, 21:15, 21:21,
           I                10:10, 12:16, 13:22,
                                                       9:7, 9:10, 9:14, 9:20,                               open [1] - 28:8
                                                       9:23                       21:23, 22:19, 23:16,      Open [1] - 4:3
idea [1] - 18:14            13:23, 14:3, 14:16,      LYDE [27] - 4:15, 4:18,      25:3, 25:10, 25:21,       opponent [1] - 6:8
ignore [1] - 25:1           15:18, 15:20, 15:23,       4:23, 5:5, 5:11, 5:18,     25:24, 26:4, 26:9,        opposing [3] - 5:13,
important [1] - 24:2        17:3, 18:17, 19:2,         5:22, 7:21, 8:5, 10:7,     26:17, 26:21, 26:25,       13:16, 15:15
IN [1] - 1:3                19:21, 20:3, 20:20,        10:19, 11:2, 11:14,        27:1, 27:11               opposite [2] - 25:13,
in-laws [1] - 20:1          25:19, 26:8, 27:3          12:15, 12:21, 12:25,      MSJ [7] - 11:22, 14:10,     25:15
inaudible [1] - 12:23     judicata [5] - 19:18,        13:13, 14:14, 14:20,       15:1, 15:2, 15:6,         order [3] - 4:5, 16:3,
incident [1] - 7:8          21:1, 21:4, 21:23,         15:15, 16:8, 17:2,         18:7                       22:15
included [2] - 14:20,       22:6                       19:14, 26:17, 26:21,      MY [1] - 28:15             original [1] - 12:13
  28:7                    JUDICIAL [1] - 1:8           26:25, 27:11                                         Original [1] - 28:13
INDEX [1] - 3:1           justice [1] - 25:1         7:4                                     N              originally [2] - 10:12,
Index [1] - 3:4           justiciable [2] - 17:23,                                                           11:6
                            19:4                                                 need [3] - 4:16, 12:6,
indicated [1] - 10:9                                            M                 12:8
                                                                                                            OSBALDO [1] - 1:3
initial [1] - 7:23                                                                                          Osvaldo [2] - 22:3,
injuries [1] - 12:13                 K               ma'am [1] - 4:23            negligent [2] - 22:3,
                                                                                                             26:11
                                                     Machine [1] - 1:19           23:13
insurance [19] - 11:10,                                                                                     outside [1] - 12:7
                          KARLA [1] - 1:4            man [1] - 7:13              NO [4] - 1:2, 1:2, 2:3,
  11:24, 12:9, 13:8,                                                                                        owe [4] - 18:23, 19:5,
                          Karla [2] - 22:4, 23:12    March [1] - 10:12            2:8
  17:12, 21:16, 22:9,                                                                                        19:7, 19:8
                                                                                                                                      4
owed [1] - 19:3            4:7                        Remedies [1] - 17:10       21:5, 21:7                  12:1, 14:4, 14:9,
own [2] - 6:18, 8:13      prevents [1] - 22:6         remember [1] - 10:14      Section [2] - 17:9,          22:8, 22:9
                          printed [1] - 28:13         rendered [1] - 12:16       17:16                      Suite [2] - 1:24, 28:24
           P              proceeding [3] - 5:25,      report [1] - 7:23         see [4] - 5:7, 16:25,       suits [2] - 21:8, 21:10
                           6:10                       reported [2] - 1:18,       21:9, 25:20                summary [24] - 5:11,
P.C. [2] - 2:4, 28:13     proceedings [5] -             28:8                    See [1] - 28:12              5:13, 5:16, 7:19,
PAGE [1] - 3:2             1:14, 3:5, 4:2, 28:6,      REPORTER [1] - 1:23       sends [1] - 13:13            8:22, 9:22, 10:8,
paid [1] - 28:13           28:10                      Reporter [2] - 28:4,      sent [1] - 6:18              10:10, 12:16, 13:22,
paid/will [1] - 28:13     PROCEEDINGS [2] -             28:23                   separate [1] - 21:17         13:23, 14:16, 15:18,
parade [1] - 21:10         4:1, 27:18                 REPORTER'S [1] - 1:1      September [2] - 11:5,        15:20, 15:23, 17:3,
parents [1] - 21:11       Proceedings [2] -           Reporter's [5] - 1:19,     25:16                       18:17, 19:2, 19:20,
part [3] - 6:11, 7:18,     1:18, 3:4                    3:5, 28:7, 28:9,        session [1] - 4:6            20:3, 20:20, 25:18,
 20:19                    produced [2] - 1:19,          28:12                   set [3] - 5:8, 5:10, 16:2    26:7, 27:3
particular [2] - 6:12,     13:15                      represent [2] - 16:8,     sets [1] - 17:11            supplemental [1] - 7:3
 16:2                     production [1] - 16:18        25:12                   settle [2] - 12:1, 12:14    support [2] - 7:18, 9:6
parties [4] - 6:11,       prong [2] - 15:1, 15:8      representing [1] -        seven [2] - 6:25, 7:2       supposed [1] - 23:3
 16:5, 28:6, 28:11        proper [1] - 9:18             26:11                   several [1] - 8:8           Supreme [2] - 17:18,
parts [1] - 21:4          proposition [2] -           requested [1] - 28:6      shape [2] - 8:16, 8:17       23:7
party [7] - 6:8, 8:9,      22:23, 23:8                requests [2] - 16:18      sheet [1] - 17:1            sustain [1] - 7:19
 9:8, 9:14, 9:18,         protection [1] - 21:16      require [1] - 6:24        show [6] - 9:21, 10:24,     sustained [2] - 10:6,
 10:17, 14:21             prove [1] - 8:22            required [1] - 8:22        14:16, 20:12, 25:14,        20:19
passed [1] - 15:24        prove-up [1] - 8:22         requires [1] - 7:1         25:18                      swore [1] - 25:15
people [2] - 22:14,       proven [4] - 7:25, 8:2,     res [5] - 19:18, 21:1,    showed [2] - 11:10,         sworn [7] - 19:12,
 25:6                      8:20, 10:20                  21:4, 21:23, 22:6        24:18                       19:15, 19:24, 20:11,
perpetuate [2] - 24:16,   provide [3] - 14:6,         resolved [4] - 9:25,      shows [1] - 22:8             20:13, 25:12, 26:4
 25:2                      14:7, 23:6                   18:20, 18:23, 23:23     signed [2] - 8:17, 16:4
person [2] - 23:18,       provided [2] - 8:19,        respectfully [3] -        simply [2] - 8:2, 8:21                 T
 24:12                     21:16                        22:19, 25:10, 25:11     Simultaneous [1] -
petition [1] - 23:12      purposes [2] - 25:25,       respective [1] - 28:11     12:23                      tangible [1] - 17:25
PHONE [2] - 2:5, 2:10      26:9                       respond [2] - 18:11,      single [1] - 21:10          tender [1] - 12:11
piece [1] - 13:24         pushing [1] - 16:9            19:20                   sister [1] - 11:17          testified [2] - 11:4,
plainly [1] - 17:13                                   response [9] - 6:21,      situation [1] - 21:2          11:20
                                                                                                            testimony [8] - 7:5,
Plaintiff [1] - 8:11                 R                  7:1, 7:3, 7:18, 7:23,   solely [2] - 15:19, 16:1
PLAINTIFFS [2] - 1:5,                                   15:16, 16:23, 25:18,                                  7:11, 11:21, 19:13,
                                                                                sort [1] - 19:21
 2:2                      rats [1] - 13:8               26:7                                                  19:15, 19:24, 20:13,
                                                                                specifically [2] -
Plaintiffs [2] - 5:24,    read [2] - 17:21, 25:15     responses [7] - 7:3,                                    26:5
                                                                                 17:11, 18:22
 11:19                    ready [2] - 12:3, 12:4        8:6, 8:14, 9:6, 9:20,                               TEXAS [4] - 1:6, 1:23,
                                                                                stands [2] - 22:22,
pleadings [4] - 23:1,     really [4] - 12:8, 14:11,     10:25, 12:24                                          1:24, 28:1
                                                                                 23:8
 23:24, 24:7, 24:8         16:11, 18:8                responsible [1] -                                     Texas [9] - 1:17, 2:5,
                                                                                Started [1] - 3:4
plenty [1] - 27:6         reason [3] - 6:2, 6:4,        14:21                                                 2:10, 17:10, 17:18,
                                                                                state [1] - 10:15
plot [1] - 24:23           11:6                       rights [1] - 8:10                                       22:21, 28:5, 28:22,
                                                                                STATE [1] - 28:1
point [2] - 8:7, 19:1     recalled [1] - 5:2          rise [1] - 4:4                                          28:24
                                                                                State [3] - 17:19,
pointed [1] - 9:8         received [1] - 7:4          Rodriguez [1] - 2:9                                   THE [57] - 1:3, 2:2,
                                                                                 22:21, 28:5
police [2] - 7:23, 12:1   recognize [1] - 20:9        room [1] - 12:4                                         2:7, 4:4, 4:8, 4:13,
                                                                                statement [2] - 10:21,
policy [4] - 17:12,       RECORD [1] - 1:1                                                                    4:16, 4:21, 5:3, 5:7,
                                                      Rule [2] - 6:10, 16:6      13:15
 23:2, 23:18, 24:9        record [1] - 8:2                                                                    5:15, 5:21, 6:21,
                                                      rule [7] - 5:17, 6:6,     stays [1] - 27:9
                          Record [4] - 1:19,                                                                  7:16, 8:4, 8:24, 9:5,
portions [1] - 28:6                                     6:23, 18:17, 22:22,     Stenotype [1] - 1:19
                           28:7, 28:10, 28:12                                                                 10:5, 10:14, 11:12,
position [3] - 7:14,                                    25:1                    step [1] - 12:7
                          recorded [2] - 10:20,                                                               12:12, 12:18, 13:6,
 10:1, 20:22                                          ruling [1] - 26:20        STREET [1] - 1:24
                           13:15                                                                              13:11, 14:11, 14:18,
Practice [1] - 17:10                                                            Street [1] - 28:24            15:11, 15:13, 15:14,
pre [2] - 5:14, 27:8      reflects [1] - 28:10                   S              Style [1] - 3:3               16:7, 16:25, 18:15,
pre-existing [1] - 27:8   refuses [1] - 12:10                                   styled [1] - 28:7             19:5, 19:8, 19:12,
pre-trial [1] - 5:14      regard [2] - 5:12,          S.W.2d [1] - 17:20        subject [2] - 9:17,           19:17, 19:19, 20:8,
preclusion [2] - 21:5,     17:18                      safe [1] - 4:20            20:25                        20:12, 20:18, 21:13,
 22:6                     regarding [1] - 23:23       SBOT [2] - 2:3, 2:8       subsequently [2] -            21:18, 21:22, 22:12,
preparation [1] -         regards [4] - 11:1,         scene [1] - 11:10          12:10, 13:20                 23:15, 24:14, 25:6,
 28:12                     16:14, 16:23, 20:23        scheme [1] - 25:9         successful [1] - 9:11         25:14, 25:23, 26:2,
presentation [3] -        relates [1] - 10:3          seated [1] - 4:9          sued [2] - 26:12, 26:13       26:6, 26:15, 26:18,
 12:22, 13:1, 18:9        relevant [2] - 9:21,        second [8] - 6:4, 8:5,    suit [7] - 6:19, 7:9,         26:23, 27:4, 27:12,
presiding [2] - 1:16,      9:23                        15:19, 18:22, 20:16,
                                                     5
  28:1
                                      V
they've [1] - 8:21
third [2] - 14:21, 15:21   valid [1] - 20:3
three [1] - 15:16          verified [2] - 8:16,
timely [1] - 6:3            11:18
to-wit [1] - 4:3           versus [5] - 4:13, 5:3,
today [1] - 15:1            17:19, 22:4, 23:20
together [1] - 11:11       VICENTE [1] - 1:23
tomorrow [2] - 26:20,      Vicente [2] - 28:4,
  26:23                     28:22
took [3] - 11:4, 14:10,    VICTORIA [1] - 1:24
  16:11                    Victoria [1] - 28:24
top [2] - 8:15, 8:18       Vidaurri [1] - 2:9
total [1] - 28:12          volume [1] - 28:7
traditional [6] - 15:2,    VOLUME [1] - 1:1
  15:8, 15:17, 15:23,      Volume [1] - 28:13
  17:2, 18:7               VOLUMES [1] - 1:1
transcript [1] - 28:13     VS [1] - 1:7
Transcription [1] -
  1:20                                W
transcription [1] -
  28:5                     waited [1] - 6:17
TRIAL [1] - 1:2            waived [2] - 17:5, 18:4
trial [4] - 5:14, 14:12,   wants [2] - 9:23, 10:23
  16:3, 27:9               WEBB [2] - 1:6, 28:2
tried [4] - 21:25, 22:1,   Webb [2] - 1:16, 28:4
  22:3                     WHEREUPON [1] -
true [2] - 25:5, 28:5       4:2
truly [1] - 28:10          wit [1] - 4:3
try [2] - 21:3, 21:6       withdrawal [1] - 13:23
turn [1] - 22:9            withdrawn [1] - 13:21
twice [1] - 21:3           withdraws [1] - 13:21
two [8] - 7:22, 15:1,      WITNESS [1] - 28:15
  15:8, 21:3, 23:1,        woman [1] - 7:13
  23:4, 24:9               words [1] - 19:20
two-prong [2] - 15:1,      wreck [1] - 23:14
  15:8                     writing [1] - 28:6
typically [1] - 7:16
                                      Y
           U
                           year [1] - 16:4
under [7] - 6:10, 7:12,    yesterday [2] - 6:1,
 17:13, 24:6, 24:21,        6:17
 25:17, 26:19
underlying [10] - 5:24,
 6:10, 6:19, 7:9, 7:24,
 8:7, 10:9, 14:9,
 20:17, 23:11
undisputable [1] -
 24:11
undisputed [2] -
 23:11, 24:18
unless [1] - 20:4
up [16] - 5:15, 5:17,
 5:19, 7:25, 8:2, 8:20,
 8:22, 11:10, 11:15,
 11:22, 15:16, 22:7,
 22:8, 24:23, 25:8,
 27:1
TAB 3
                                                                                                        Filed
                                                                                      10/30/2014 1:36:42 PM
                                                                                           Esther Degollado
                                                                                               District Clerk
                                                                                               Webb District
                                                                                         2014CVT002421D1
                        CAUSE NO. _________________________

OSBALDO HURTADO AVALOS       §                           IN THE DISTRICT COURT
AND ANTONIO HURTADO          §
                             §
                             §
VS.                          §                           _____ JUDICIAL DISTRICT
                             §
                             §
KARLA LIZETTE FLORES GUEVARA §                           WEBB COUNTY, TEXAS


     PLAINTIFFS’ ORIGINAL PETITION AND REQUEST FOR DISCLOSURE


TO THE HONORABLE JUDGE OF SAID COURT:

       NOW COMES Osbaldo Hurtado Avalos and Antonio Hurtado hereinafter referred

to as Plaintiffs, complaining of and about Karla Lizette Flores Guevara, hereinafter referred

to as Defendant, and will show unto the Court the following:

                                A. Discovery Control Plan

1.     Plaintiffs intend to conduct discovery under Level 2 of the Texas Rule of Civil

Procedure 190.

                                    B. Parties and Service

2.     Plaintiffs Osbaldo Hurtado Avalos and Antonio Hurtado are individuals residing

in Laredo, Webb County, Texas.

3.     Defendant, Karla Lizette Flores Guevara, an individual, may be served with process

1717 Cedar, Laredo, Texas 78040. Service of said defendant as described above can be

effected by civil process server.

                                          C. Venue

4.     Venue is proper in Webb County, Texas because all or a substantial part of the

events or omissions serving as the basis of this litigation occurred in Webb County, Texas.
                                           D. Facts

5.     On or about March 18, 2013, Plaintiffs suffered injuries when the vehicle they were

driving was struck by the vehicle operated by Karla Lizette Flores Guevara.

                               E. Count One - Negligence

7.     At or immediately preceding the time of the subject collision, Karla Lizette Flores

Guevara was operating her vehicle negligently. Karla Lizette Flores Guevara had a duty

to exercise ordinary care and operate her vehicle reasonably and prudently. Karla Lizette

Flores Guevara breached that duty in one or more of the following ways:

              a.     Failing to make a proper turn;

              b.     Failing to maintain a proper lookout;

              c.     Failing to timely apply her brakes;

              d.     Failing to turn her vehicle in order to avoid the collision; and

              e.     Driver inattention.

8.     Karla Lizette Flores Guevara’s negligence proximately caused Plaintiffs’ injuries

and other damages.

                                       F. Damages

9.     Plaintiffs seek monetary relief over $100,000, but nor more than $200,000.

                                G. Conditions Precedent

10.    All conditions precedent have been performed or have occurred.

                                H. Request for Disclosure

11.    Under Texas Rule of Civil Procedure 194, Plaintiffs request defendant disclose

within 50 days of the service of this request, the information or material described in Rule


                                            Page -2-
194.2 (a) through (l).

                                           I. PRAYER

12.    WHEREFORE PREMISES CONSIDERED, Plaintiffs Osbaldo Hurtado Avalos and

Antonio Hurtado respectfully pray that defendant be cited to appear and answer herein,

and that Plaintiffs have judgment against defendant for the following:

              a.         Physical pain in the past and future;

              b.         Mental anguish in the past and future;

              c.         Physical impairment in the past and future;

              d.         Medical expenses in the past and future;

              e.         Lost earning capacity in the past and future;;

              g.         Costs of suit;

              h.         Pre-judgment and post-judgment interest; and

              i.         All other relief, in law and in equity, to which Plaintiff may be

                         entitled.


                                             Respectfully submitted,

                                             THE GREEN LAW FIRM P.C.
                                             34 S. Coria
                                             Brownsville, Texas 78520
                                             Telephone : (956) 542-7000
                                             Facsimile    : (956) 542-7026


                                             BY:                /S/
                                                         JORGE A. GREEN
                                                         State Bar No. 24038023

                                             ATTORNEY FOR PLAINTIFFS




                                              Page -3-
       PLAINTIFFS’ FIRST SET OF DISCOVERY REQUESTS TO DEFENDANT

Interrogatory #1:
Describe how the collision occurred, including: (1) what you contend caused or contributed
to the collision, (2) how it happened, (3) the road and weather conditions, and (4) the traffic
conditions.

Answer:


Interrogatory #2:
Please state the purpose of your trip at the time of the collision, including where you had
been, where you were going, and the time at which you were supposed to arrive at your
destination.

Answer:


Interrogatory #3:
Who was driving the car at the time of the collision?

Answer:


Interrogatory #4:
Have you ever been sued or filed a lawsuit before? If so, please state (1) what the suit was
about, (2) the county and state in which it was filed, (3) the style of the case, and (4) the
disposition of the case, if resolved.

Answer:


Interrogatory #5:
Describe any previous car wrecks in which you have been involved. For each, please state
(1) where the wreck happened, (2) who you believe was at fault, (3) whether a lawsuit was
filed and (4) where you sought medical treatment for any injuries you sustained.

Answer:


Interrogatory #6:
Were you using a cell phone in any matter, including making or receiving a call, writing
or reading a text message, or writing or reading an email, at the time of the collision?

Answer:




                                            Page -4-
Interrogatory #7:
If you have been convicted of a felony or crime of moral turpitude in the last ten years,
state the charge, the date and place of arrest, and county of conviction.

Answer:


Interrogatory #8:
Do you disagree with anything in the investigating officer’s police report, including the
additional narrative? If so, please state with what parts you disagree, why you disagree
with them and why you did not change ask to amend the report.

Answer:


Interrogatory #9:
At what speed do you believe the vehicles involved were traveling immediately prior to
the collision made the basis of this lawsuit?

Answer:


Interrogatory #10:
Describe in detail any and all conversations you had immediately following the collision
until the time you left the scene. In your answer, please include: (1) with whom you spoke,
(2) what the conversation was about, and (3) for about how long you spoke with each
person.

Answer:


Interrogatory #11:
Do you intend to argue Plaintiff’s injuries were not caused by the wreck? If so, state the
basis for your belief, including facts supporting such contention.

Answer:


Interrogatory #12:
Describe the severity of the impact between the vehicles and the resulting visible damage
to the vehicles.

Answer:


Interrogatory #13:
When did you first become aware of Plaintiffs’ vehicle. Please state in both time (seconds
or minutes) and distance (in feet).
                                          Page -5-
Answer:




          FIRST SET OF REQUESTS FOR PRODUCTION TO DEFENDANT

Request #1:
All photographs by Defendant or Defendant’s agent that relate to Plaintiffs’ cause of action,
including photographs of Plaintiffs, the vehicles involved in the collision, including
Plaintiffs’ and Defendant’s vehicles, and/or the scene of the collision.

Response:


Request #2:
A copy of any property damage estimates, of both Plaintiff, Defendant, or any other vehicle
involved, in Defendant’s or Defendant’s agent’s possession.

Response:


Request #3:
All oral, taped or recorded statements made by any witnesses, including Plaintiff and
Defendant, to the subject collision which are in the possession, constructive possession,
custody or control of the defendant, Defendant’s attorney or anyone acting on Defendant’s
behalf.

Response:


Request #4:
Please produce all documents that Defendant has, including all deposition testimony and
trial transcripts, from any other lawsuits regarding personal injury in which Defendant,
either in your personal capacity or on behalf of a minor or incompetent plaintiff, has been
involved.

Response:


Request #5:
If and/or when an expert is retained by Defendant, please produce a copy of the expert’s
file, including: (1) all correspondence, including fee arrangements, between the expert and
Defendant and/or Defendant’s agents, including Defendant’s attorney, (2) all materials and
documents reviewed by the expert in preparing his or her report, (3) any slide-show,
power point presentation, or other demonstrative evidence the expert will use at trial, and
                                           Page -6-
(4) a list of all the cases in which the expert has testified in the last 4 years.

Response:


Request #6:
Please provide a copy of any and all statutes, regulations, ordinances, or written rules or
customs that Defendant intends to introduce at trial.

Response:


Request #7:
Please provide copies of any and all communications between Defendant’s attorney and
Defendant’s insurance carrier.

Response:


Request #8:
Please execute the attached authorization for the release of Defendant’s cellular phone
records.

Response:


Request #9:
Please provide a copy of your driver’s license in effect at the time of the collision.

Response:


Request #10:
Please provide copies of any and all medical records for treatment you have received
following previous car wrecks.

Response:


Request #11:
Please provide a copy of all documents related to previous lawsuits in which you have
been involved; specifically, please include (1) any and all petitions or complaints, (2)
deposition transcripts of your testimony, and (3) your discovery responses.

Response:




                                             Page -7-
                 Plaintiffs’ Requests for Admissions to Defendant

1.   Admit you are familiar with the area in which the subject collision occurred.

Response:


2.   Admit that you believe Plaintiffs could not have done anything differently to avoid
     the collision.

Response:


3.   Admit that you have previously received treatment from a chiropractor.

Response:


4.   Admit that you have previously had an MRI performed on yourself.

Response:


5.   Admit you have suffered pain because of a car wreck in which you were previously
     involved.

Response:


6.   Admit that you caused the car wreck that is made the basis of this lawsuit.

Response:


7.   Admit that you know of no other witnesses to the car crash.

Response:


8.   Admit that an immediate family member (spouse, siblings, parents, and children)
     has been injured in a car wreck before.

Response:

                                        Page -8-
9.   Admit that you should always wait until traffic is clear when turning left on an
     unprotected (without an arrow) green light.

Response:




                                      Page -9-
                                    VERIFICATION

THE STATE OF TEXAS                            §
                                              §
COUNTY OF ____________________                §


BEFORE ME, the undersigned authority, a notary public, on this day personally appeared
KARLA LIZETTE FLORES GUEVARA who being by me duly sworn on his oath, deposed
and said that she is duly qualified and authorized in all respects to make this Affidavit; that
she has read the above and foregoing answers to interrogatories; and every statement
contained in the answers is within her knowledge, and is true and correct.



                                           ____________________________________
                                           KARLA LIZETTE FLORES GUEVARA




      SUBSCRIBED AND SWORN TO BEFORE ME by the said KARLA LIZETTE
FLORES GUEVARA, on this the ______ day of ________________________, 2014, to certify
which witness my hand and official seal.




                                           ____________________________________
                                           Notary Public, State of Texas


                                           ____________________________
                                           Printed/typed name of Notary


                                           My Commission Expires:

                                           ______________________




                                           Page -10-
   AUTHORIZATION FOR WIRELESS COMMUNICATION DEVICE RECORDS


TO:_________________________________          (Service Provider)

   __________________________________ (Address of Service Provider)

   __________________________________

RE:    KARLA LIZETTE FLORES GUEVARA

ACCOUNT NO._____________________

TELEPHONE NO.____________________ (if different from account number)

TIME PERIOD OF RECORDS REQUESTED: March 18, 2013 - April 18, 2013

       This is to authorize and direct the above named company who has issued, sold,
rented, or leased any form of cellular, pager or other wireless communication device(s)
and/or provided services to me, KARLA LIZETTE FLORES GUEVARA to furnish the
law firm of The Green Law Firm, P.C., or any of its representatives, any and all billing and
usage records related to the above account during the period indicated. Such records
include, but are not limited to: detailed billing information, detailed call logs and/or calls
placed and received (and the time of day or night and durations of the same), or any other
information pertaining to the usage of my account during the time period referenced
above. I hereby waive any privilege I have to said information.

   Signed the _________ day of _________________________, 2014.



                                           ______________________________________
                                           KARLA LIZETTE FLORES GUEVARA


Records should be provided to:

THE GREEN LAW FIRM, P.C.
c/o Jorge A. Green, Esq.
34 S. Coria Street
Brownsville, Texas 78520
Telephone : (956) 542-7000
Facsimile     : (956) 542-7026

                                           Page -11-
                                                                                                                                                                Filed
                                                              CIVIL CASE INFORMATION SHEET                                                    10/30/2014 1:36:42 PM
                                                                                                                                                   Esther Degollado
         CAUSE NUMBER (FOR CLERK USE ONLY): _______________________________ COURT (FOR CLERK USE ONLY): ______________________                         District Clerk
                                                                                                                                                       Webb District
                         STYLED OSBALDO HURTADO AVALOS & ANTONIO HURTADO VS. KARLA LIZETTE FLORES GUEVARA                                        2014CVT002421D1
                         (e.g., John Smith v. All American Insurance Co; In re Mary Ann Jones; In the Matter of the Estate of George Jackson)

A civil case information sheet must be completed and submitted when an original petition or application is filed to initiate a new civil, family law, probate, or mental
health case or when a post-judgment petition for modification or motion for enforcement is filed in a family law case. The information should be the best available at
the time of filing. This sheet, approved by the Texas Judicial Council, is intended to collect information that will be used for statistical purposes only. It neither replaces
nor supplements the filings or service of pleading or other documents as required by law or rule. The sheet does not constitute a discovery request, response, or
supplementation, and it is not admissible at trial.
1. Contact information for person completing case information sheet:                Names of parties in case:                                     Person or entity completing sheet is:

Name:                                     Email:                                    Plaintiff(s)/Petitioner(s):
                                                                                                                                                X Attorney for Plaintiff/Petitioner
                                                                                                                                                  Pro Se Plaintiff/Petitioner
Jorge Green                               Jorge@thegreenlawfirmpc.com                                                                             Title IV-D Agency
                                                                                    Osbaldo Hurtado Avalos & Antonio                              Other:
Address:                                  Telephone:                                Hurtado
34 S. Coria St.                           956-542-7000
                                                                                                                                                Additional Parties in Child Support Case:
City/State/Zip:                           Fax:                                      Defendant(s)/Respondent(s):
                                                                                                                                                Custodial Parent:
Brownsville, Texas 78520                  956-542-7026
                                                                                    Karla Lizette Flores Guevara
                                                                                                                                                Non-Custodial Parent:
Signature:                                State Bar No:
                                          24038023
  Jorge Green                                                                                                                                   Presumed Father:
_____________________________
                                                                                    [Attach additional page as necessary to list all parties]
2. Indicate case type, or identify the most important issue in the case (select only 1):
                                                 Civil                                                                                              Family Law
                                                                                                                                                              Post-judgment Actions
          Contract                        Injury or Damage                         Real Property                        Marriage Relationship                    (non-Title IV-D)
Debt/Contract                         Assault/Battery                          Eminent Domain/                           Annulment                            Enforcement
     Consumer/DTPA                    Construction                             Condemnation                              Declare Marriage Void                Modification—Custody
     Debt/Contract                    Defamation                               Partition                               Divorce                                Modification—Other
     Fraud/Misrepresentation        Malpractice                                Quiet Title                                  With Children                           Title IV-D
     Other Debt/Contract:               Accounting                             Trespass to Try Title                        No Children                       Enforcement/Modification
                                        Legal                                  Other Property:                                                                Paternity
Foreclosure                             Medical                                                                                                               Reciprocals (UIFSA)
     Home Equity—Expedited              Other Professional                                                                                                    Support Order
     Other Foreclosure                   Liability:
  Franchise
  Insurance
                                    X Motor Vehicle Accident
                                      Premises
                                                                                Related to Criminal
                                                                                      Matters                               Other Family Law                 Parent-Child Relationship
  Landlord/Tenant                   Product Liability                          Expunction                                   Enforce Foreign                   Adoption/Adoption with
  Non-Competition                       Asbestos/Silica                        Judgment Nisi                                Judgment                          Termination
  Partnership                           Other Product Liability                Non-Disclosure                               Habeas Corpus                     Child Protection
  Other Contract:                        List Product:                         Seizure/Forfeiture                           Name Change                       Child Support
                                                                               Writ of Habeas Corpus—                       Protective Order                  Custody or Visitation
                                       Other Injury or Damage:                 Pre-indictment                               Removal of Disabilities           Gestational Parenting
                                                                               Other:                                       of Minority                       Grandparent Access
                                                                                                                            Other:                            Paternity/Parentage
         Employment                                              Other Civil                                                                                  Termination of Parental
   Discrimination                       Administrative Appeal                  Lawyer Discipline                                                              Rights
   Retaliation                          Antitrust/Unfair                       Perpetuate Testimony                                                           Other Parent-Child:
   Termination                          Competition                            Securities/Stock
   Workers’ Compensation                Code Violations                        Tortious Interference
   Other Employment:                    Foreign Judgment                       Other:
                                        Intellectual Property

              Tax                                                                            Probate & Mental Health
    Tax Appraisal                    Probate/Wills/Intestate Administration                                         Guardianship—Adult
    Tax Delinquency                       Dependent Administration                                                  Guardianship—Minor
    Other Tax                             Independent Administration                                                Mental Health
                                          Other Estate Proceedings                                                  Other:

3. Indicate procedure or remedy, if applicable (may select more than 1):
    Appeal from Municipal or Justice Court                 Declaratory Judgment                                                         Prejudgment Remedy
    Arbitration-related                                    Garnishment                                                                  Protective Order
    Attachment                                             Interpleader                                                                 Receiver
    Bill of Review                                         License                                                                      Sequestration
    Certiorari                                             Mandamus                                                                     Temporary Restraining Order/Injunction
    Class Action                                           Post-judgment                                                                Turnover
TAB 4
TAB 5
TAB 6
TAB 7
From:            Jorge Green
To:              Paola Lucio
Subject:         FW: Hurtado v. Fred Loya
Date:            Thursday, February 02, 2017 1:14:53 PM



We need to save this to the file
 
From: Jorge Green
Sent: Thursday, August 25, 2016 5:06 PM
To: 'rlyde@vlrhlaw.com'
Subject: Hurtado v. Fred Loya
 
Hello Rick.  Your office answered the disclosures on this case like a standard auto case.  Please
supplement the disclosures to include the persons at Fred Loya with knowledge of facts relevant to
the denial of coverage.  I’d like to the depositions of Judy Liberto and Francisco Martinez.  Please
give me some dates and advise whether Judy Liberto is still and employee of Fred Loya. 
 
Jorge Green
Board Certified-Personal Injury Trial Law
Texas Board of Legal Specialization
 
The Green Law Firm, P.C.
34 S. Coria
Brownsville, Texas 78520
Telephone: (956) 542-7000
Facsimile: (956) 542-7026
www.thegreenlawfirmpc.com
 
TAB 8
From:            Paola Lucio
To:              "Rick Lyde"
Cc:              "mperez@vlrhlaw.com"
Subject:         13-023 Osbaldo Hurtado Avalos & Antonio Hurtado As Assignees of Karla Flores vs. Loya Insurance Company
Date:            Tuesday, January 31, 2017 9:40:21 AM
Attachments:     image001.png
                 image002.png
                 image003.png



Mr. Lyde
Good Morning, as per your correspondence please be advised that our clients will be available for
Depositions on Thursday February 2 at 11am.
Mr. Osbaldo Hurtado will require an interpreter.
Please send out the notices.
 
Also please be advised that Mr. Green requested for your Disclosures to be amended and include a
complete copy of the policy.
 
Please let me know if you have any questions
Thanks and have a great day.
 
Respectfully,
 
Paola Lucio
The Green Law Firm PC
34 S. Coria St
Brownsville, TX 78520
T: (956) 542-7000
F: (956)542-7026
plucio@thegreenlawfirmpc.com




 
CONFIDENTIALITY STATEMENT:  This message, as well as  any attached document, contains
information that is confidential and or privileged.  This  information is only  intended  for  the use
of  the addressee named above.  If you are not  the intended recipient, you are  hereby notified
that any disclosure, copying, distribution  or  taking any action in reliance of the contents of this
message or  it's attachment is strictly prohibited, and may  be unlawful. If you have received this 
in error, please delete.
 


       Go GREEN.  Don't print this e-mail unless it is absolutely necessary.
TAB 9
TAB 10
TAB 11
TAB 12
