                                                                                      ACCEPTED
                                                                                  01-15-00349-CV
                                                                       FIRST COURT OF APPEALS
                                                                               HOUSTON, TEXAS
                                                                              6/2/2015 3:46:15 PM
                                                                            CHRISTOPHER PRINE
                                                                                           CLERK

                              No. 01-15-00349-CV

                                                                 FILED IN
                                                          1st COURT OF APPEALS
                       IN THE COURT OF APPEALS                HOUSTON, TEXAS
                             AT HOUSTON                   6/2/2015 3:46:15 PM
                                                          CHRISTOPHER A. PRINE
                                                                  Clerk

                  IN RE MANHATTAN I VAUGHN, JVP


                      Original Proceeding Regarding
                           Cause No. 2013-76550
        In the 80th Judicial District Court of Harris County, Texas


 RELATOR'S REPLY TO REAL PARTIES IN INTEREST'S RESPONSE
     TO RELATOR'S PETITION FOR WRIT OF MANDAMUS


    J.J. Knauff
    State Bar No. 24032517
    jknauff@tmlfpc.com
    Michael A. Miller
    State Bar No. 14100650
    mmiller@tmlfpc.com
    Clark S. Butler
    State Bar No. 00793437
    cbutler@ tmlfpc.com

    THE MILLER LAW FIRM
    3811 Turtle Creek Blvd., Suite 1950
    Dallas, Texas 75219-4535
    (469) 916-2552
    (469) 916-2555- Telefax
                                          COUNSEL FOR RELATOR
                                          MANHATTAN I VAUGHN, JVP


ORAL ARGUMENT REQUESTED
                                          TABLE OF CONTENTS

Table of Contents ..................................................................................................... 11

Index of Authorities ................................................................................................. iii

Arguinent ................................................................................................................... 1

     1. Su1nn1ary of Argun1ent .................................................................................... 1

    2. Rebuttal to Appellee's Brief. ........................................................................... 1

Prayer for Relief ...................................................................................................... 12

Ce1iificate of Service .............................................................................................. 13

Certificate of Compliance ....................................................................................... 13

Verification .............................................................................................................. 14




                                                               11
                                    INDEX OF AUTHORITIES

Cases

In re BP Prods. N. Am., Inc.,
       263 S.W.3d 106 (Tex. App.-Houston [1st Dist.] 2006, orig. proceeding) .... 2


Rules

TEX. DISCIPLINARY R. OF PROF. CONDUCT 3.08 ...................................................... 11

TEX. R. CIV. P. 193 ................................................................................. 5, 6, 9-10, 10




                                                         111
                                          ARGUMENT

1.     Summary of Argument.

       Respondent's Order violated Relator's due process rights because there was

no notice of a hearing on the First Amended Third Motion to Compel.

Additionally, Respondent abused his discretion by granting more relief than was

requested by requiring production of the Privileged Notes and Box that were not

the subject of any valid, pending noticed motion. Finally, Respondent abused his

discretion by ordering production of the Privileged Notes when they were clearly

subject to the attorney-client and/or work product privileges because they were

created after counsel was hired, after litigation was anticipated, and the Privileged

Notes were transcribed by a representative acting upon instructions from counsel.

2.     Rebuttal to Response by Real Parties in Interest.

A.     Real Parties In Interest incorrectly recite the factual/procedural history
       of this case by asserting that Relator failed to comply with the trial
       court's instruction when such an assertion is not supported by the
       record.

       The Real Parties In Interest (hereinafter "Plaintiffs") assert the trial comi

instructed Relator to "produce all documents responsive to Plaintiffs' requests or

submit a privilege log for documents claimed to be protected by attorney-client

privilege for in camera review. Contrary to the [trial court's] instruction, Relator

produced a privilege log claiming attorney-client and work product privileges for


Reply to Response to Petition for Writ of Mandamus                       Page 1
all documents contained in the box" (Response ~ 11 ). The foregoing assertion that

Relator acted in a manner that was contrary to the trial court's instruction is

demonstrably false because the trial court did not limit its instruction to just

attorney-client privilege as shown in the following hearing excerpts:

       I'm going to order the Defendant to prepare a privilege log to
       documents that sound like they may be responsive but to which you're
       claiming a privilege. Then those documents can be reviewed in
       camera by the Court.

(TAB 1 10 p. 27/18-24).

       If it's not in the box and you haven't turned over to the Plaintiff
       everything in the box, then at least prepare a log so we understand
       what it is that either hasn't been produced to them or the Court so they
       have the ability to challenge it if they believe it's something that's
       discoverable that you haven't produced.

(TAB 10 p. 58/4-10). The foregoing insttuctions by the trial court were clear,

concise, and not limited to only "atton1ey-client privilege" as Plaintiffs have

alleged.    In fact, Jason Gibson, counsel for Plaintiffs, restated the trial comi's

instruction when he stated:

       [T]hey're going to produce a list or a privilege log-- either produce it,
       tell us what's in there or, if they're going to claim privilege, then give
       us a privilege log; and then we'll take that up separately.

(TAB 10 p. 59/16-20).




1
 As used herein, "TAB" references each tab in the appendix to Relator's Petition for Writ of
Mandamus and the evidence contained therein is incorporated fully herein.

Reply to Response to Petition for Writ of Mandamus                                 Page2
       The foregoing excerpts establish Plaintiffs' assertions lack merit.            On

December 5, 2014 the trial court ordered that Relator provide a privilege log (TAB

10 p. 27/21-25, p. 30/3-5, p. 57/24-58/10), and on December 8, 2014 Relator

complied with the order (TAB 16, Ex. G). Therefore, this Comi should disregard

the foregoing complaints in detennining the merits of Relator's Mandamus

Petition.

B.     Plaintiffs' argument that Relator had multiple opportunities to be heard
       does not remedy the lack of notice and violation of Relator's due process
       rights.

       Plaintiffs do not contest that they failed to provide proper notice of the

hearing on their Amended Third Motion to Compel; rather, they contend the issues

had been before the trial court for months and Relator "had a month's notice of the

hearing on Plaintiffs' Amended Third Motion to Compel" (Response              ~~   26, 14,

25). Plaintiffs' statement of "a month's notice" of the hearing on the Amended

Third Motion to Compel fails to direct this Court to any evidence of such notice,

contradicts the facts, and contradicts Plaintiffs' judicial admission that notice of a

hearing on Plaintiffs initial "Third Motion to Compel" was given on December 22,

2014 but "[ s]even days before the hearing, Plaintiffs filed an Amended Third

Motion to Compel"         (Response~      13). The lack of proper notice on the Atnended

Third Motion to Compel is precisely what Relator complains about in its



Reply to Response to Petition for Writ of Mandamus                           Page3
Mandamus (Mandamus Statement of Facts § I (B)(vi)-(vii); Mandamus Argument

§III (A)).

       Further, Plaintiffs' allegation that Relator's due process rights were not

violated because it "had four separate opportunities to provide argument and

evidence" does not hold water given the fact that only one of the "four separate

opportunities" was properly noticed?                 The "four separate occasions" where

argument was entertained actually consisted of a hearing on Relator's Special

Exceptions on November 21, 2014 (unnoticed), Plaintiffs' Motion to Compel

Responses to Requests for Production Nos. 38, 40, 42, and 46 on December 5,

2014 (noticed), and the Januaty 23, 2015 hearing on Plaintiffs' Amended Third

Motion to Compel (unnoticed) (Mandamus Summary of Facts § I (B)(ii); TAB 8;

TAB 15). Relator could not find an additional hearing where it had the opportunity

to "provide argument and evidence" in this matter. 3 Moreover, Relator objected in


2
  Although Plaintiffs attempted to compel responses to Nos. 38, 40, 42, and 46 at the December
5, 2014 hearing, they attempted to expand the compelled discovery to include all of their
requests for production without notice or an opportunity for Relator to respond and Relator
objected to inclusion of any additional requests for lack of notice and for not being properly
before the trial comi (TAB 10 p. 21/14-22/14, p. 44/14-17, p. 45/18-46/13, p. 47/21-p. 4817,
52/6-5311 0)
3
   Relator assumes the other "opportunit[y]" referenced is either the telephonic hearing on
December 10, 2014 on Relator's Emergency Motion for Rehearing or the April 7, 2015 Status
Conference telephonic hearing. The December 10 hearing was almost exclusively based upon
arguments in support of the admission of the affidavit of Tom Kramer and not the merits of the
Motion to Compel (TAB 11; TAB 13). The April 7 hearing, like so many of the other hearings,
was not specifically represented that it was to discuss the merits of any motion to compel; rather,
it was represented to be a conference to "review the status of pending motions, a proposed new
docket control order, and the progression of the case generally before the court" (TAB 24).

Reply to Response to Petition for Writ of Mandamus                                   Page4
writing (TAB 6; TAB 9; TAB 18; TAB 19) and at each improperly noticed hearing

whenever the arguments were brought up (TAB 6; TAB 10 p. 21/5-22/14, p.

26/18-22, p. 36/20-37/3, p. 39/25-40/7, p. 50/5-10; TAB 20 p. 3/13-4/12, p. 6/9-15,

10/20-11/15, p. 12/3-18).

       More importantly, Plaintiffs' argument is a red herring that fails to address

the pressing issue before this Court, namely, whether the trial court granted more

relief than requested when it heard and granted a motion to compel discovery

based upon a motion that was superseded by operation of law and, as such, there

was no relevant motion upon which relief could be granted. Thus, the trial court

either entered a void order or it granted more relief than was requested. Because

Relator objected to the lack of notice and violation of its due process rights at

eve1y turn and because the trial court entered a void order or an order granting

more relief than was requested, this Court should grant the Mandamus Petition.

C.     Plaintiffs' waiver argument fails because they rely upon the wrong
       standard.

       Relying on Rule 193.3(a)-(b), Plaintiffs maintain Relator waived its

objections based upon privilege because it did not provide a privilege log at the

time it answered discovery (Response p. 15-19); however, this asse1tion fails for

four reasons. First, Relator originally lodged objections to Requests for Production


Further, the April 7 status conference was the forum where the trial court issued the complained-
of order compelling the Privileged Notes.

Reply to Response to Petition for Writ of Mandamus                                 PageS
Nos. 38, 40, 46, and 48 based upon the attorney-client, work product, and/or joint

defense privileges. (TAB 10 p. 57/1-3; TAB 16, Ex. G). Second, Relator was not

required to complete a privilege log for items that are covered by the attorney-

client or work product privileges and argued as much to the trial court (TAB 10 p.

41110-11; TAB 20 p. 47/14-20). See In re BP Prods. N. Am., Inc., 263 S.W.3d

106, 112 (Tex. App.-Houston [1st Dist.] 2006, orig. proceeding) (citing TEX. R.

Crv. P. 193.3(c) and stating, "When a privilege is asserted under Rule 193.3(c), a

patiy need not comply with TEX. R. Crv. P. 193.3(a) and (b), which require, upon

request, a description of the information or materials withheld, often referred to as

a privilege log, and an asse1iion of a specific privilege for each item or group of

items withheld."). Third, the trial court never ruled that the lack of a privilege log

constituted waiver; rather, it implicitly overruled such an argument by allowing

Relator to remedy this alleged failure by timely submitting such a log without

penalty (TAB 10 p. 27/21-25, p. 30/3-5, p. 32/8-9, p. 57/24-58/10; TAB 20 p.

46/1-16). Because a privilege log was not required under the rules, Plaintiffs'

argument lacks merit and should be disregarded by the Court.

D.     Plaintiffs' argument that Relator's policy manual and the Kramer
       affidavit establish the notes/report were in the regular course of
       business are not supported by evidence.

       Plaintiffs allege the Privileged Notes are not privileged because they were

kept in the regular course of business as required by Relator's written policies

Reply to Response to Petition for Writ of Mandamus                        Page6
(Response p. 20-28). This argument is conclusory and fails to account for the only

relevant evidence regarding how the Privileged Notes came to exist-the affidavit

of Gary Latnbert.

        Relator's policies and procedures do not apply to establish the Privileged

Notes were completed in the regular course of business. A simple comparison

between various fonnal reports submitted in camera with the Privileged Notes

facially establishes that the Privileged Notes were not the type of document

contemplated by the policies and procedures (Compare Privileged Notes with TAB

25). For instance, the Privileged Notes are handwritten and/or typed but have no

heading, are not on letterhead, and are unsigned (In camera Privileged Notes). By

contrast, a fonnal accident report would be similar to that found in TAB 25, 4 which

is on letterhead, has questions to answer with blank spaces, contains sections for

preventive measures, corrective actions, incident evaluation, and is signed by the

person or persons conducting the investigation (TAB 25).

        Although the policies show a report is generally completed after an accident,

m this case no formal report was completed because litigation counsel was

involved from day one, the investigation was turned over to counsel, and the only

credible evidence before the trial court was Gary Lambert's testimony that he

created the notes and typed summary in an effort to report to litigation counsel
4
  TAB 25 is a representative example of a formal rep01i that was contained in the Relator's privilege log and before
the trial court to determine the merits of Relator's privilege objections (TAB 19, Ex. 4).

Reply to Response to Petition for Writ of Mandamus                                                   Page7
regarding the accident (Tab 20 p. 47/2-13, p. 3911-4117; Tab 19, Ex. 5).

Specifically, Gary Lambert attested, "Mike Miller [Relator's counsel] arrived at

the TAMU site within hours after the accident. Mike Miller asked me to sit in on

meetings and report back to him regarding those meetings. My notes and other

documents I generated were the result of those instructions . . . [and] I thought

[they] would be confidential" (TAB 20 p. 39/23-41117, p. 63/8-64116; TAB 19, Ex.

5).   The foregoing affidavit establishes the genesis of the notes as being an

instruction from litigation counsel, Mike Miller, to report to him regarding the

accident. Further, the affidavit of Tom Kramer establishes that Relator anticipated

litigation immediately upon learning of the accident and retained litigation counsel

to investigate and prepare for possible litigation (TAB 6). Thus, Relator met its

initial burden to prove an applicable privilege and the trial court eiTed by

ovenuling the privileges and ordering such records be produced.

       In addition and assuming arguendo the attorney-client or core work product

privileges do not apply, which is denied, the Privileged Notes are "other work

product" and are only discoverable upon a showing of "substantial need" and that

Plaintiffs are "unable without undue hardship to obtain the substantial equivalent

of the material by other means." In re BP, 263 S.W.3d at 113. In this case,

however, Plaintiffs never showed a substantial need or that the substantial

equivalent of the information from the Privileged Notes could not be obtained by

Reply to Response to Petition for Writ of Mandamus                      PageS
other means. In fact, the trial comi noted Plaintiffs would have an opportunity to

detennine whether a report actually existed once they deposed Gary Lambert (TAB

10 p. 55/9-12).          Notwithstanding the foregoing, Plaintiffs were given the

opportunity to depose Lambert but failed to ask a single question regarding the the

observations of Lambert or the content of the notes or alleged report (TAB 20 p.

50/20-25). Further, Plaintiffs sought to re-depose Gary Lambert and the scope of

this deposition was discussed by the trial court wherein it stated, without objection

by counsel, that Lambert could be asked about his factual observations, factual

investigation, what he observed, what he found, and the names or identities of

witnesses he spoke with (TAB 20 p. 73/7-12). Lambert's Privileged Notes are not

needed in order for Plaintiffs to obtain substantially the same infonnation as in a

deposition. As a result, mandamus should issue.

E.     Plaintiffs' assertion that Relator concealed 1,200 pages of documents for
       months is not supported by the record.

       Plaintiffs allege Relator wrongfully concealed or did not disclose 1,200

pages of documents that may have been responsive to discovery requests. These

assertions are not supported by the rules of procedure or the record.

       The Rules provide that a "party must amend or supplement the statement if

additional privileged infom1ation or material is found subsequent to the initial

response. Thus, when large numbers of documents are being produced, a party may


Reply to Response to Petition for Writ of Mandamus                       Pagc9
amend the initial response when documents are found as to which the party claims

privilege." TEX. R. C1v. P. 193, n. 3. The Rules further contemplate that discovery

must be amended or supplemented "reasonably promptly" after the party discovers

a response to written discovery is incoiTect or incomplete. TEX. R. CIV. P. 193.5.

       Tom Kramer stated in his affidavit that the existence of the Privileged Notes

was unknown until after November 18, 2014 when Plaintiffs' counsel informed

Relator's counsel that he believed a report existed and Kramer began his Quixotic

quest to find such a report (TAB 6 p. 4). Kramer attested he discovered a box of

documents containing the Privileged Notes and immediately turned them over to

Relator's counsel (TAB 6 p. 4). Shortly thereafter, Relator made the existence of

the Privileged Notes known to Plaintiffs and the trial court on December 1, 2014

(TAB 6). On December 5, 2014 the trial court ordered that a privilege log be

submitted and Relator complied with this order on December 8, 2014 (TAB 14,

Ex. F).     Because Relator did not actively conceal records but, rather, timely

supplemented, this Court should disregard Plaintiffs' hyperbole and grant

Mandamus.

F.     Evidence proffered by Plaintiffs is objectionably and not admissible.

       Plaintiffs refer this Court to the affidavit of Jonathan Sneed (TAB 16, Ex.

A), the affidavit of Casey Jordan (TAB 16, Ex. B), various texts and emails, and a

transcribed recording of a call allegedly between Gmy Lambert and Jonathan

Reply to Response to Petition for Writ of Mandamus                      Page 10
Sneed in an effort to suppmi their arguments         (Response~   20) (TAB 16, Ex. I; TAB

20 p. 51/24-52/3, p. 62/15-20). Sneed and Jordan were both attmneys for the law

finn representing Plaintiffs at the time of the affidavits and Relator objected to

these affidavits as as incompetent under Rule 3.08 of the TEXAS DISCIPLINARY

RULES OF PROFESSIONAL CONDUCT, legally invalid because they did not

aver the facts were true and conect, hearsay, and conclusory (TAB 18; TAB 19;

TAB 20 p. 39/23-40/3). To the extent Plaintiffs rely on the foregoing affidavits,

texts, emails and/or other self-serving but unauthenticated documents, Relator

objects and prays the Court disregard same in determining the merits of this

Mandamus.

       The only relevant and admissible evidence before the trial court regarding

the privilege issues was contained in the affidavits of Tom Kramer and Gary

Lambert (TAB 6; TAB 19, Ex. 5). This evidence was what the trial court should

have reviewed to determine the applicability of the attorney-client and work

product privileges and both affidavits establish the propriety of the privileges.

Because the trial court ruled the Privileged Notes were not privileged and should

be produced even though the privileges were established, this Comi should grant

Mandamus.




Reply to Response to Petition for Writ of Mandamus                            Page 11
G.     Conclusion

       For the reasons contained in this pleading and the Petition for Writ of

Mandamus, Relator prays this Court will grant it the extraordinary relief requested

because to do otherwise would cause undue harm to Relator. The production of

the Privileged Notes cannot be cured on appeal.

                                   PRAYER FOR RELIEF

WHEREFORE, Relator respectfully requests that:

(1)    this Court determine the Privileged Notes are privileged and should not be
       produced;
(2)    this Court grant Relator's Application for Writ of Mandamus directed to
       Respondent, and command him to (1) vacate his order, and any subsequent
       order in compliance with same, as addressed herein, and (2) sign, and cause
       to be entered in the court minutes, an Order denying Plaintiff's Motion to
       Compel; and
(3)    this Court grant such other and ftniher relief to which Relator may show
       itself justly entitled, including costs regarding this original proceeding.

                                                     Respectfully submitted,

                                                     Is/ J.J. Knauff
                                                     J.J. KNAUFF
                                                     State Bar No. 24032517
                                                     i knauff@tmlfpc.com

                                                     THE MILLER LAW FIRM
                                                     3811 Turtle Creek Blvd., Suite 1950
                                                     Dallas, Texas 75219-4535
                                                     (469) 916-2552
                                                     (469) 916-2555- Telefax

                                                     ATTORNEYS FOR RELATOR


Reply to Response to Petition for Writ of Mandamus                             Page 12
                              CERTIFICATE OF SERVICE

      I hereby certify that a true and conect copy of the foregoing document has
been fmwarded viae-filing to all counsel of record as listed below on this 2nd of
June 2015.

Respondent
Honorable Lany Weiman
Judge, 80 1h Judicial District Court of Ranis County

Attorneys (or the Plaintiff
Jason Gibson
The Gibson Law Fim1
440 Louisiana, Suite 2400
Houston, Texas 77002
Plaintiffs' Counsel

                                                       Is/ J.J. Knauff
                                                       J.J. KNAUFF


                           CERTIFICATE OF COMPLIANCE

       I hereby certify that this Petition was prepared using Microsoft Word, which
indicated that the total word count (exclusive of those items listed in rule 9 .4(i)( 1)
of the Texas Rules of Appellate Procedure, as amended) is 2,898 words.

                                                       Is/ J.J. KNAUFF
                                                       J.J. KNAUFF




Reply to Response to Petition for Writ of Mandamus                         Page 13
                                      No. 01-15-00349-CV



                              IN THE COURT OF APPEALS
                                    AT HOUSTON


                         IN RE MANHATTAN I VAUGHN, JVP


                           Original Proceeding Regarding
                                Cause No. 2013-76550
             In the 80th Judicial District Court of Harris County, Texas


                              SUPPLEMENTAL AFFIDAVIT



STATE OF TEXAS                         §
                                       §
COUNTY OF DALLAS                       §

       BEFORE ME, the undersigned authority, on this day personally appeared

J.J. KNAUFF, who is personally known to me and, who, after being duly sworn

according to law, deposed and said:

       "My name is J.J. Knauff. I am of sound mind, over the age of twenty-one

(21) years old, capable of making this affidavit, have never been convicted of a

felony, and have personal knowledge of the facts stated herein and affinn that the

following is true and correct.



Reply to Response to Petition for Writ of Mandamus                    Page 14
       "I am an attorney of record for Relator in the Underlying Suit, Cause No.

2013-76550, in the 80 1h Judicial District Court of Ranis County, Texas (the

"Underlying Suit"). I have reviewed the pleadings, discovery, conespondence,

and other documents that have been generated and served in this matter. I have

also attended the many of the depositions taken in this matter and have taken

depositions in this matter. As a result, I have personal knowledge of the pleadings

and discovery filed and served in the Underlying Suit, including those filed by

Relator and those by other parties. I have read Relator's Petition for Writ of

Mandamus and Reply to Response to Relator's Petition for Writ of Mandamus, and

all factual statements made therein are true and correct."

       "Attached hereto as the Record in this original proceeding are true and

correct copies of the following documents and attachments thereto:

TAB 24:        Notice of Status Conference;

TAB 25:        Relator's Accident Investigation              Repoti:   Derr        Isabel
               (MV_LAMBERT.000199-000216);

TAB 26:        Affidavit of J.J. Knauff.

       "The documents and attachments contained in Exhibits "24-25" above are

true and conect copies of the originals."

FURTHER, AFFIANT SAYETH NOT.




Reply to Response to Petition for Writ of Mandamus                       Page 15
       SUBSCRIBED AND SWORN TO BEFORE ME on this                             2nd   day of June

2015, to cetiify which witness my hand and seal of office.


                                           of{_ -2. fftL
                                               Notary Public in and or the
                                               State of Texas




Reply to Response to Petition for Writ of Mandamus                                 Page 16
                                                                                           3/27/2015 4:43:08 PM
                                                                      Chris Daniel - District Clerk Harris County
                                                                                          Envelope No. 4680862
                                                                                            By: ALEX CASARES
                                                                                    Filed: 3/27/2015 4:43:08 PM


                                Cause No. 2013-76550

JOSEFINA GARCIA, Individually              §        IN THE DISTRICT COURT OF
and as Heir to the Estate of ANGEL         §
GARCIA (Deceased); and ORBELINDA           §
HERRERA, as Next Friend of ASHLEY          §
GARCIA and BRYAN GARCIA (Minors)           §
                                           §
v.                                         §        HARRIS COUNTY, TEXAS
                                           §
MANHATTANjVAUGHN,JVP,                      §
TEXAS CUTTING & CORING, LP,                §
TEXAS CUTTING & CORING, GP, INC.           §
and LINDAMOOD DEMOLITION, INC.             §         80 1h JUDICIAL DISTRICT

                         NOTICE OF STATUS CONFERENCE

      PLEASE TAKE NOTICE a Status Conference will be held on Tuesday, April 7,

2014 at 4:30p.m. in order to review the status of pending motions, a proposed new docket

control order and the progression of the case generally before the court. Please note the

call-in number is 713.345.9879, passcode: 3686100#.

                                                Respectfully Submitted,

                                                THE GIBSON LAW FIRM




                                                Jason A. Gibson
                                                State Bar No. 24000606
                                                Casey L. Jordan
                                                State Bar No. 24090599
                                                The Lyric Centre
                                                440 Louisiana, Suite 2400
                                                Houston, Texas 77002
                                                Ph: (713) 650-1010
                                                Fax: (713) 650-1011

                                                ATTORNEYS FOR PLAINTIFFS



                                       TAB24
                              CERTIFICATE OF SERVICE

       I certify a copy of this document was served to all counsel of record by first class
regular mail and/or fax on March 27, 2015.




                                                 Casey L. Jordan




                                             2


                                        TAB24
                                                          Manhattan Vaughn                713.332.7250 (office)

   Manhattan¥                                             PO Box 11610
                                                          College Station, Texas 77842
                                                                                          g79.268.7540 (racsimtle)




        ACCIDENT INVESTIGATION REPORT FOR INJURY/ PROPERTY DAMAGE

Company: BiggE Equipment Company, Cub eros Trucking & Derr Isabel

TruckDriver: CuberosTrucking Roberto Lara 281·414-5534
Vehicle Driver: Avary Edwards 512-970-5932
Date & Time oflncident: 10/22/13 4:48pm.
Date ofReport: 10/23/13

Location of Property Damage: A&M University Joe Rout St. & Houston St.

Type of Damage: Vehicle damage to left front fender of2004 Jeep Cherokee

Estimated CostofDamage: Unknown

Description oflncident: BiggE Equipment was erecting a 330 Ton Crane on the north end of Kyle
 Field, College Station Texas.
William Bailey with BiggE Equipment hired Cub eros Trucking from Porter Texas to deliver different
pieces of the crane's boom.
All trucks were instructed to drive north on Houston St., offload and exit back to the south on
 Houston St same as entering the project
Derr Isabel Superintendent Rick Fayard instructed the Cuberos truck driver 2·3 times do not turn
north out of the gate but to the south on Houston St.
The truck driver disregarded the instructions and backed to the south and drove towards the north
on Houston St. He moved over into the southbound lane to clear the corner for the right hand turn
onto Joe Rout St.
The 2004 Jeep was legally in her lane of traffic at the stop sign on the corner of Joe Rout St. and
Houston St.
When she observed the trailer moving toward her driver side front fender she started honking her
horn to warn the truck driver.
The truck driver completed his right turn and clipped the front left fender of her vehicle.
Gary Lam bert with Manhattan Vaughn questioned the driver as to why he didn't follow instructions
on how to exit the project and he said he wanted to turn right onto Joe Rout, and then back the rig past
Houston St. and turn back to the south on Houston.
I immediately ask him if he planned on backing his truck towards one way traffic without a flagger to
stop oncoming traffic. No answer?
I met with the BiggE supervisor and Instructed him to prohibit this driver from any future deliveries
to the Kyle Field Project.

Gary Lambert
Manhattan Vaughn Safety Department
glambert@manl1attanvaughn.com
214·687-1651
Kyle Field College Station Texas




                                                 TAB25                                   MV_LAMBERT.000199
*CountY          . .                                             l'ioCit\1               ,;.        .      .
· Name.         BR.A.ZOS                                         1Nllma      CQllE~E; STA1lON




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 tAl
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          .
        lil Ve& 1RdW;{. rHY,Y
        O No ~- · lR Num.
                                             12 Rily,y
                                             Ipari     1   Num
                                                                             13 Sfreat
                                                                             IPmlilc
                                                                                               SlJl!.llt
                                                                                               Nli.me            JOE ROUIT BL,VD,
                                                                                                                                 .             I" S1reet
                                                                                                                                                I3Ufllx




 ~~r OWI'J~                   CUBEROS~ELOY
0 Lest:ee   Nlime ~Acldreaa- '24737 ROBERT l)R. PORTER. 1X. 77365
 Prootct Ill Yw QJ;Xpl~I26F'ui.      l lr~_;!!&$P~ MAXUM CASUALTYXNSURANCE                            I~:.R.il$p. ,......,.,.. ,.,..,.no•
 All.   R&~~p   No Q!Sltetnptl Raep.'JYPt;   11..... ~                                                ,....,.,     • ....,......,u16._..." ~




                                                                         TAB25                                                       MV_LAMBERT.000200
          Unit Pnln.                           Tlll<eoTo
         Num. Num.                                                                                 Tlll<llllBy

                                                                                                                                 IL .J..    it    .J.. JL              I             .1.1          I


~5~ ~-1--r----------------4---------~----~L=~~~~~-A~====~"~-1.==*''=4'
 I                                              t.~J~!
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                                                                                                                                                         Jl
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                                                                                                                                                                                                                              I
                                                                                                                                                                                                                            .. I


        Unlt       Prm.
     N1.1m.        Num.
         1          1          TURNED FROM WRONG LANE                                                                                                                      210337

~~r-+-------------------------------~----~
               Dll!llaaed F'mt>Orlv C}fharThan VAh!e!H                                  owner'!~   Nam&                                                   o.vnet's Addl1!&9
~~--~~~~~~~~~~--~--------~~~~~--------r---------~~~~~--------~

!T--------------------+----------------·--~--------------------~
    Unit
    Num.
                        lr.m
               1 ~.10,001.., LllS.
                                           omAtlsPORiiNG
                                             HAZAROOUSMA"'Ia!!AL
                                                                          0    llH,APACrrY
                                                                                             .I28Vell,
                                                                                              lOper.         1
                                                                                                                 (29 camor
                                                                                                                 Ito Type        2
                                                                                                                                           ICon1er
                                                                                                                                           liD Num. 00546:!088C
    ~·                                                                        Canle(&
    'c:Qoii; Marne
              FULKERSON 1k FUlKERSON               PtlmaiV Addr. 1920 KING RICHARDS CT.. MONTGOMERY           TX 17316
5 SOROv.y. 31Veh. I[J~GVW                 Hlu:Mttt 0Yeai~2HazMat       IHazMat                321-laz:Mat IHOMat
l\!Ao:au 1 Type 11J!ilGWiRt113tOtOtOI Rel&:l!led[liNo !CtauNum.t....JIIDNum.L....LJI 1 1 1 ICiasaN1.!m.LJIIONum-L..L.Jr 1 1 1 1
   33caroo       hraner 1 1Unll   IORGVW                     J$4Trlr.     1rrotler 2 lunit  IORGVW                  I~Trlr.
   Body style 5 I'       JNum. 2. IOGVWR 1 1 1 1 rOt jl"fpe           1 I            I»urn. IOGWJR 1 1 t 1 1 1 (Type

    w   e
    ~=~35Soq.1 ~3
                36Seq.2                                                    S5Seq.3                          35Seq.4
                                                                     'V..ltlci&Oo!icisl!mestlolllnnrOI>lnlonl
                                                                                                                                           ~=Axles
                                                                                                                                                         andRoadwa
                                                                                                                                                                       3         ~~:~Tire$                              10


jI  6
               1
               2
                          65
                                 n


                                               I
                                                   48
                                                           e     .




                           l!lYeSilgatl)l'~ ~!fB!ive O!ltnfOO of.;vnat' ~
                                                                           lOirlboti       MaV lillve, COn1!l!>.        !Ill

                                                                                                                       COlli!.

                                                                                                                         1
                                                                                                                                      S9

                                                                                                                                     Cern!.
                                                                                                                                      1
                                                                                                                                                  40

                                                                                                                                                 Roa&

                                                                                                                                                  2
                                                                                                                                                            41
                                                                                                                      W&athot Ugh! EmeMg R~~ Roadway Swfaea Trame
                                                                                                                                                                 · 42

                                                                                                                                                              TYfl!l

                                                                                                                                                               1
                                                                                                                                                                           Allgnmeil; Condftlon Control
                                                                                                                                                                                 1
                                                                                                                                                                                                       43



                                                                                                                                                                                                       1
                                                                                                                                                                                                                        44



                                                                                                                                                                                                                        gs
                                  {AIIlldl AlkfiUona1 Sheets It         ~-·
    Unit. 1 (towing 'Otl.it 2} waG Na on Houston St.
    D:dve~    of units 1 & 2 attempted to turn east
    onto Joe Routt but was not able. to ~ t:he
    turn ouoCGeeful.ly, D:eivo.r of Units 1 & 2
    sta.f:.Qd be backed onto Houston St. into tha SB
    lana o~ t::avel to attal:llpt t.he tW':I1 av!U%\. Unit
    3, which wu ~Stopped by a. flagman south of
    the .interaeotJ.on on ll:ou~:~ton St., was allowed
.. to prooe&d to t:ha intarsaction. Unit 3 t:hazl
~ 04llla to a stop in tha NB lane of travel at the
a   atop s.:l.gn for the intorseation. llet'o~ Unit 3
<11 bc.lqan to turn, driver of Units 1 & 2 :began t:o
~ turn eut onto Joe P.oute :from t.he SB lane of!
~ 1Iot1aton St. Uo.it. 2 than t.tt:.t:uek unit 3 as she
!   :z:e:mainad stopped at tha stop 8ign. D:r:iver of
    11Aits 1 & 2 statad he did not saa trnit 3
    stopped at tl\e atop sign,

    Witne~rs              Information:
                                                               • *    Continued "'           *
     T!me Nolilled            !How
    lf24HRMM) I 1 d$ I 3 I 5 II Notified WITNESS

                                                                                                                                                                    ~m. 905008245
                                                                                                                                                                    District/
                                                                                                                                                                    Area         I     I       I        I       I       I          I




                                                                                           TAB25                                                               MV_LAMBERT.000201
     ~~~. 3 l~t 1 ID=!DlfJ:mll~ TX l~l¥1l                                                        t.:VAFLV         l'viN',1,:J.;4,G~W,4,8~.S,4.,4 1 Cr~tOtfid~·,s,4,
     voo.      . l!i·Van . tvelt. ·                                                                     l\i'eh,
                                                                                                                                                          ~ 91 I'0'Na!mll\>otl'cliafiiei/lln
                                                                                                                                                        TBo<tf             lt ,~CJ,1'1~~-on
    Year       t2' Ot 0,4,Jco~ot                ~ !M&KeJEP                                              !~CHEROKEE
    ~o             1    ~          :rxlm:f. ~76Q8335                                  I~ c ~~~ 0 ~                &6       ~~-           A         ~~~DIYYYYJL:.!l!.Ziczl.!l!•.:t,!l•9•3•
0    M:.~~ ~206 ~VER. HIU.IlR.,AUSTIN, TX                                               78746

~r-~....;.i.,_!..;..~+!_·~+---~-r_D!ivt_'_ror_·~-a!l'_e:_.ta.ai,_Pmon_Am._(or_~_~ -e-on_1 _m_lil -e
                                                                                                  __     -+tt-+f.;:_..;:.ll--r•-~-t-~~+!-F,l-"ii-F~:...~+-~+§.;..;.iJ~·. . :;~:. .·J-+g.; .;.!f-~. . ;.~1+·~ ~
~     .1       1       1 ED.WARl)S.. AVERY EUZASETH                                                           N20W2                      :1:   1197N96




    ,!,~':I'D            0.1.110     IOLJIP                                            Ja.E~.         lilHIDL
    ,, ~~>"'             $la!ll      I t-lum.                                          I t..w-        End.                                                            IL   .J.JJ_L.f.t         _t_ _t_ .I




~~~--~--~~~~~~
(UIJ---II--+--t---.----------------+-t--ll--+--t--+-t-+--+--h:.Not":App!!cabfll.Airohoi."81UI

.lij~ir--t---r-+---------------------------------------+-4-~-+~--4--.f--~~-4:~~~~~
~
                                                               )Fln.Resp.
                                                               (Name                                                               I fill. Reap.
                                                                                                                                     NIJm;
                                                                                                                                                                                     --
    Fln:Resp.
    Pl!cmlNum.

                                                                            JTowed
                                                                              TO


                                                                                                 TAB25                                                      MV_LAMBERT.000202
taw Enforcementand OOOT U&e ONLY
FormCR-31/112010
                                                          I
                                                          cas& 10
                                                                     13'"i022...000
                                                                             .     3                                1wor enm 10                                                     I               Pail~ofUU
        ~~~ ~::                                     Taken To                                                      'raker~ By
                                                                                                                                                           Data of~_
                                                                                                                                                                          rtj                               ~rr~lh
                                                                                                                                                                                                             24H

                                                                                                                                                L....L-iL ..l              I        I   I       1i1                      I



 ~~
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                                                                                                                                                l ...t J     .J..    Jl    t        t   I                        I       I               I

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                                                                                                                                                !l ...tiL ...tit           1            I               I.. I            I               I
       Unit       Ptstl.
       Num.       Num.                                                                               Chlll!28                                                                           CHa~Num.




I                                                                                                                                                            ---
Ill              Onmaoet:~ P~ O!Mt ·nmn Vehlc:lel                                                       Own~!'alllltmA                                                Dwni!I'G ~s

!I
il
      Unit
      NUm.             O 10.001+ LBS.           OTAANsPORTtNG
                                                  HAZAI\OOUS MAiERJAL                O II+ CAPACITY·l~ve11.
                                                                                                     ()pet.                      I~CA\'IW
                                                                                                                                  1D 'JW>9          ~~am~
                                                                                                                                                     IONum.

      ~~l's                                                                                C&ll'lel'a
          Name
~ 30 Rd.\y.
      Acce&s
      33C&Igo
      Body~

      ~I$5Seq.1
                        31VI!ll.
                        lY!le
                                I$
                                      IPRGVW
                                       OGVWRI

                            IT !let ~I ~nlt
                                          Num.

                                                      as aeq.z
                                                               Fo~GVW
                                                                     HalM9t 9~:si~HazMa!

                                                                 GWIRI        I      I
                                                                                           PiiiiU\iYAddr.


                                                                                            I
                                                                                         $Seq,$
                                                                                                 Hs1M8t
                                                          I I I I I 'Rekw.ed 0 Ko Class Num.L..J 10 Num.LLJ 1 I I 1

                                                                                                 I
                                                                                                         I~Tilr.
                                                                                                        I 1\'pQ                ITmOOrzl~~
                                                                                                                           35Sllq. 4
                                                                                                                                                        ilJ-
                                                                                                                                                       ITotsJ
                                                                                                                                                                     um.w 10 Nurn.LJ....J 1 1 1 I I

                                                                                                                                                                      I    I        I   I

                                                                                                                                                                                        ITota'
                                                                                                                                                                                                I
                                                                                                                                                                                                             ~~Tilt.
                                                                                                                                                                                                            I Typo

                                                                                                                                                        Num. Axles                       Nurn. 'lil'es
             !16 Collll butfll(l FIICUll'll                   Gon!nlon            VIII! cw ~focts nn        WIR~tcra     0n1nl011                               luna Roat :wavccnc ltlon•

i~ Ul111Num.                       m111bu1lnq        MaY Haw Con!rib.                    ml!1butf1              Mev Have Contrtb.        38
                                                                                                                                       Wea!Mf
                                                                                                                                                 ~
                                                                                                                                                   $9        40
                                                                                                                                                           Ente~ng
                                                                                                                                                                    41       42        43
                                                                                                                                                                      Road\Ya) Road-Nay Surface                                  r.!1nn
gB     3                                                                                                                               Cond.               Roada       Typo Allgnmeiil Cond!IIOn Conlml


                           lllW$= Naffl11lve          =of
                                          AddillOI'IIll
                                                                    What Happened
                                                                If Nilals91lly)                                   llndle!IIO
                                                                                                                    North          I
                                                                                                                                         1         1         2            1
                                                                                                                                                fbid oi&Qt.iili •NOi to seale
                                                                                                                                                                                            1                        1               fJS




I5
""~
                                                                                    .
~
§




                                                                         * * Continued * *
      llme Notltied
                                5 1jHow
                             3 1-1
      i24HfiliMi. I :J. lfi 1-      Nollft'ed WITNESS
                                                                                                                  TlmeAnlved
                                                                                                                  lii~HR~- r1d!J~dil
                                                                                                                                                  . m~.nate
                                                                                                                                                                          L!&.1LJ.J:JJ, 21 g, ' I :ill
      ln'ml. !~~J:fea~~                         VAN DRESAR, TODD
                                                                                                                                                                               10
                                                                                                                                                                               Num.         905008245
      Comp. ONo Name P!lnMd)
ji5   ORI
      Num.l    T1X1 0!2.11! !11 ~~ Jl1 01                     k•llqllMI TEXASA&.M UNIVERSITY POUCE                                                                             Of8frloll
                                                                                                                                                                               Ama          I       I        I       I       I       I       I



                                                                                                            TAB25                                                          MV_LAMBERT.000203
   lndtcate North.




Drawing Not To Scale.




              JOE ROUlT BLVD




                               TAB25   MV_LAMBERT.000204
List all employees involved & craft: check if injured
_              N/IL              .
                7




     Note: Additional forms are available for Employee Statements, Change Analysis, Sequence
     of Actions & Events, and additional notes. Use as required for the investigation.




                                                        TAB25                   MV_LAMBERT.000205
  Use the following questions and charts (wben appropriate) to assist in identifying the contributing factors and root causes
 .related .to the incident. Space is left for comments.                 .

 Provide a task description (what was llle employee trying to accomplish? Ex. Welding steel beam, unloading truck with
 forklift):



 Empl?yee 9u~Uficatio.ns                j
                                     1:! .f\·
 Expenence m JOb functlOn: _ _.L~:.t--:-::--:------ Experience on job s i t e - - - - - - - - - - -
 Was this task discussed in the morning b r i e f i n g ? - - - - - - - - - - - - - - - - - - - - - - - -
 Was the employee trained to conduct this task?
 Are special certifications or training required?
 When was llle last safety meeting the employee attended? - - - - - - - - - - - - - - - - - - - - -
 Is there historical infonnation to consider? (Safety reprimands, previous incidents of the same nature etc.) - - - - - -

 Environmental Factors
 Check if any of the listed factors may have contributed to the incident. Explain below.
        Lighting                                                     Excessive noise
        Ventilation                                                  Outside weather
        Temperature extremes                                         Fire I explosion hazard
        Congestion I close clearance                                 Chemieal spill/ exposure
        Confined space (penni! req?)                                 Other hazardous conditions in work area (explain below)


Tools I Equipment /Material                                 0
Were tools and/or equipment involved in the incident? +yJM-r-------------------
Were inspections on tools and equipment current? -~N-:-()..=-':------------------
Were the tools and equipment proper for the job? --...>-::,__v__________________
Was lock out I tag out required? _     Used properly?_
Was facility material or property invol ed? ....o..::...:o
Was there damage or defects? --~1-)_     0_ _ _ ________________                _ _ _ _ _ _ _ _ _ _ __
                                                                             _ _--:-..,.,...----------
Were the tools, equipment, and material adequate and meet applicable regulations? .lJ_b

Procedures I Poll des
ls a written procedure provided for the task? ..f-.,...=--
If not, why?     l.,.l.Qd '?:c s, D +\:


Are there circumstances dictating the procedure could not be followed?

At Risk Behavior
Was a safety device bypassed or removed?_,_..-..-::..-·----------------------
Poor or improper lifting teclmiques? - - - - - - - - - - - , . . - - - - - - - - - - - - - - - -
Was there a failure to recognize and correct a hazardous condition? _ · - - - - - - - - - " - - - - - - - - - - -
Was improper loading or placement of materials a factor?.=:.
Were, tools and equipment properly used? .;;._....-_·--------------~--------
Was the correct PPE being used by the employee?         _,...   Was it in good condition?

Conunen~--------------------------------------------------------




                                                             TAB25                                    MV_LAMBERT.000206
 List below the Preventive Measures I Corrective Actioos thai have.been or will be taken to prevent a recurrence of this incident or other incidents of this
 type. Include who has been made responsible for the Preventive Measures/ Corrective Actions and the estimated completion date, The listed actions are to
 be approved for implementation only after the required review and approval signatures a.re obtained.

  I. Responsible   Person-------------                                       Estimated completion d a t e - - - - - Complete------



 2. Responsible P e r s o n - - - - - - - - - - - - - -                       Estimated completion date _ _ _ _ _ _ Complete _ _ _ _ __



 3. Responsible P e r s o n - - - - - - - - - - - - - - - - Estimated completion d a t e - - - - - - Complete------



 4. Responsible P e r s o n - - - - - - - - - - - - - - -                    Em mated c~mpletion d a t e - - - - - - Complete------

 5. Responsible Person _ _ _ _ _ _ _ _ _ _ _ _ __                           Estimated completion date------~ Complete------



 6. Responsible P e r s o n - - - - - - - - - - - - - - Estimated completion d a t e - - - - - - Complete------



Comments: List attachments and use this section for any comments

"Why Tree Diagr m", Photographs,
       .                         .




                                     state (in comments) any Contributing Factors or Preventive measures you feel need to be incorporated.




2. Project Mana~· SCS

--'~:..;.&fj~::.-__.~l/l-'::....!f.·1f,t.,.-·_ _ Date JQ.. 2..2.- /3 .
Co~en:      _______-________________________________________________________________________________



Check here if the acddent has resulted in OSHA Rerordable ___              ~~Time      _ __                                                  Page4




                                                                          TAB25                                             MV_LAMBERT.000207
Instructions:
Use this form for Employee Statements, additional notes, sketches, or to prepare a "Sequence of
Actions and Events" for your investigation. Attach to the incident investigation repott




                                                                                        ~,4-- ~~.,t
                                                                    _r-foy,~..-.              ...,.f!f<...-.. ,~;.." :U;;

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                                                                    f,;tf_. ~;{d s~~
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                                                                                                 S ~/'I f"urt/1~

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                                             r
                                                               / : ..p      v-                     /
                                                              ~'/.;.. .->".4:. u..~ /~~/'
                                                              ~~~                    rp;il-< /
                                                                                   /UY#?F




                                               TAB25                                             MV_LAMBERT.000208
TAB25   MV_LAMBERT.000209
TAB25   MV_LAMBERT.000210
TAB25   MV_LAMBERT.000211
TAB25   MV_LAMBERT.000212
TAB25   MV_LAMBERT.000213
TAB25   MV_LAMBERT.000214
TAB25   MV_LAMBERT.000215
TAB25   MV_LAMBERT.000216
                                 No. 01-15-00349-CV



                         IN THE COURT OF APPEALS
                               AT HOUSTON


                     IN RE MANHATTAN I VAUGHN, JVP


                         Original Proceeding Regarding
                              Cause No. 2013-76550
           In the 80th Judicial District Court of Harris County, Texas


                         SUPPLEMENTAL AFFIDAVIT



STATEOFTEXAS                      §
                                  §
COUNTY OF DALLAS                  §

      BEFORE ME, the undersigned authority, on this day personally appeared

J.J. KNAUFF, who is personally known to me and, who, after being duly sworn

according to law, deposed and said:

      "My name is J.J. Knauff. I am of sound mind, over the age of twenty-one

(21) years old, capable of making this affidavit, have never been convicted of a

felony, and have personal knowledge of the facts stated herein and affirm that the

following is true and correct.




                                       TAB26
      "I am an attorney of record for Relator in the Underlying Suit, Cause No.

2013-76550, in the 80 1h Judicial District Comi of Harris County, Texas (the

"Underlying Suit"). I have reviewed the pleadings, discovery, correspondence,

and other documents that have been generated and served in this matter. I have

also attended the many of the depositions taken in this matter and have taken

depositions in this matter. As a result, I have personal knowledge of the pleadings

and discovery filed and served in the Underlying Suit, including those filed by

Relator and those by other parties. I have read Relator's Petition for Writ of

Mandamus and Reply to Response to Relator's Petition for Writ of Mandamus, and

all factual statements made therein are true and correct."

      "Attached hereto as the Record in this original proceeding are true and

correct copies of the following documents and attachments thereto:

TAB 24:      Notice of Status Conference;

TAB 25:      Relator's Accident Investigation                Repmi:   Derr   Isabel
             (MV_LAMBERT.000199-000216);

TAB 26:      Affidavit of J.J. Knauff.

      "The documents and attachments contained in Exhibits "24-25" above are

tlue and correct copies of the originals."

FURTHER, AFFIANT SAYETH NOT.
      SUBSCRIBED AND SWORN TO BEFORE ME on this                      2nd   day of June

2015, to certify which witness my hand and seal of office.


                                    s:i~ Y. yvvy/      1
                                      Notary Public in and for the
                                      State ofTexas
