                                                                            ACCEPTED
                                                                       07-15-00117-CV
                                                          SEVENTH COURT OF APPEALS
                                                                    AMARILLO, TEXAS
                                                                  6/4/2015 11:06:54 AM
                                                                      Vivian Long, Clerk


                     No. 07-15-00117-CV

                                                       FILED IN
                IN THE COURT OF APPEALS         7th COURT OF APPEALS
                                                  AMARILLO, TEXAS
               SEVENTH DISTRICT OF TEXAS        6/4/2015 11:06:54 AM
                      AT AMARILLO                    VIVIAN LONG
                                                        CLERK

                 HOFER BUILDERS, INC.
                  Defendant - Appellant
                              v.
         FIREMAN’S FUND INSURANCE COMPANY
         AS SUBROGEE OF UNITED RENTALS, INC.,
                    Plaintiff - Appellee

                  Appeal from the County
                    Court at Law No. 3 of
                   Tarrant County, Texas
                  Cause No. 2014-001872-3
          The Honorable Judge Mike Hrabal presiding

       BRIEF FOR HOFER BUILDERS, INC., APPELLANT


                                  THE COX LAW FIRM, PLLC
                                  1300 Norwood Dr., Suite 100
                                  Bedford, TX 76022
                                  Telephone: (817) 860-9200
                                  Facsimile: (817) 860-9205
                                  Edward S. Cox
                                  State Bar No. 00793560
                                  ed@edcoxlaw.com
                                  Mary R. Torres
                                  State Bar No. 24086084
                                  mary@edcoxlaw.com
                                  ATTORNEYS FOR APPELLANT

ORAL ARGUMENT IS REQUESTED


                              i
                                               Table of Contents


I. Identity of Parties and Counsel ....................................................................... iii

II. Index of Authorities ......................................................................................... iv

III. Statement of the Case ................................................................................... viii

IV. Statement Regarding Oral Argument........................................................ viii

V. Issues Presented ............................................................................................. viii

VI. Statement of Facts ............................................................................................. 1

VII. Summary of Argument ................................................................................... 3

VIII. Argument and Authorities ........................................................................... 4
 
         A. The Trial Court Erred in Denying Hofer’s Motion for New Trial ... 4
 
         B. The Evidence is Legally and Factually Insufficient to Support the
         Unliquidated Damages Award................................................................. 14
 
         C. Conclusion .............................................................................................. 23

IX. Prayer ................................................................................................................ 24

X. Certificate of Service ........................................................................................ 24

XI. Appendix .......................................................................................................... 26
     Trial Court’s Judgment signed December 8, 2014 ................................A1
     Trial Court’s Order signed February 10, 2015 .......................................A3                                       
     TEX. R. CIV. P. 243. ......................................................................................A4
     TEX. DISCIPLINARY R. PROF'L CONDUCT 1.04(b). ......................................A5
     TEX. CIV. PRAC. & REM. CODE § 38.001. ....................................................A7
     Excerpts from Clerk’s Record ..................................................................A8
     Excerpts from Reporter’s Record ..........................................................A44


                                                              ii
             I.    IDENTITY OF PARTIES AND COUNSEL

The following is a complete list of all parties to the trial court’s final
judgment, as well as the names and addresses of all trial and appellate
counsel.

PARTIES                                     COUNSEL

Plaintiff:                                  Jeffrey S. Reddall
Fireman’s Fund Insurance Company            THE LAW OFFICE OF JEFFREY S.
As Subrogee of United Rentals, Inc.         REDDALL
                                            One Sugar Creek Center Blvd.,
                                            Suite 925
                                            Sugar Land, Texas 77478


Defendant:                                  Edward S. Cox
Hofer Builders, Inc.                        Mary R. Torres
                                            THE COX LAW FIRM, PLLC
                                            1300 Norwood Dr., Ste. 100
                                            Bedford, Texas 76022




                                      iii
                               II.      INDEX OF AUTHORITIES

Supreme Court of Texas Cases

Angelo v. Champion Rest. Equip. Co.,
 713 S.W.2d 96 (1986) .......................................................................................... 14

Arthur Andersen & Co. v. Perry Equip. Corp.,
 945 S.W.2d 812 (1997) ........................................................................................ 21

Bank One, Texas, N.A. v. Moody,
 830 S.W.2d 81 (1992) ............................................................................................ 6

Champion Int’l Corp. v. Twelfth Court of Appeals,
 762 S.W.2d 898 (1988) .......................................................................................... 4

Craddock v. Sunshine Bus Lines, Inc.,
 133 S.W.2d 124 (1939) ............................................................................... passim

Dir., State Emps. Workers’ Comp. Div. v. Evans,
 889 S.W.2d 266 (1994) ............................................................................... passim

Downer v. Aquamarine Operators, Inc.,
 701 S.W.2d 238 (1985) .......................................................................................... 5

Estate of Pollack v. McMurrey,
 858 S.W.2d 388 (1993) ........................................................................................ 11

Gaines v. Kelly,
 235 S.W.3d 179 (2007) .......................................................................................... 9

Golden Eagle Archery, Inc. v. Jackson,
 116 S.W.3d 757 (2003) ........................................................................................ 16

Holt Atherton Ind., Inc. v. Heine,
 835 S.W.2d 80 (1992) ............................................................................................ 7


                                                        iv
In re R.R.,
  209 S.W.3d 112 (2006) (per curiam) ................................................................... 5

IRA Res., Inc. v. Griego,
  221 S.W.3d 592 (2007) .......................................................................................... 8

Irvine v. Grady,
  19 S.W. 1028 (1892) ............................................................................................... 9

Morgan v. Compugraphic Corp.,
 675 S.W.2d 729 (1984) ........................................................................................ 15


New Amsterdam Cas. Co. v. Tex. Indus., Inc.,
 414 S.W.2d 914 (1967) ........................................................................................ 22

Pool v. Ford Motor Co.,
 715 S.W.2d 629 (1986) ........................................................................................ 16

Sutherland v. Spencer,
 376 S.W.3d 752 (2012) ...................................................................................... 5-6

Tex. Commerce Bank, Nat'l. Assn. v. New,
 3 S.W.3d 515 (1999) (per curiam) ......................................................... 14, 16-17

Tony Gullo Motors I, L.P. v. Chapa,
 212 S.W. 3d 299 (2006) ....................................................................................... 22

Tucker v. Thomas,
 419 S.W.3d 292 (2013) ........................................................................................ 22

Courts of Appeals Cases

Comanche Nation v. Fox,
 128 S.W.3d 745 (Austin 2004, no pet.) ........................................................... 5-6



                                                          v
Cruz v. State,
 737 S.W.2d 74 (San Antonio 1987, no writ) .................................................... 13

Dawson v. Briggs,
 107 S.W.3d 739 (Beaumont 1993, no pet.) ....................................................... 16

Dodd v. Savino,
 426 S.W.3d 275 (Houston [14th Dist.] 2014, no pet. h.)................................. 16

Ferguson & Co. v. Roll,
 776 S.W.2d 692 (Dallas 1989, no writ) ............................................................... 5

Ferrell v. Ferrell,
 820 S.W.2d 49 (Corpus Christi 1991, no writ) .................................................. 5

Gotch v. Gotch,
 416 S.W.3d 633 (Houston [14th Dist.] 2013, no pet. h.) .................................. 15

Gotcher v. Barnett,
 757 S.W.2d 398 (Houston [14th Dist.] 1988, no writ) ...................................... 5

Interconex, Inc. v. Ugarov,
  224 S.W.3d 523 (Houston [1st Dist.] 2007, no pet.) .................................. 15-16

In the Interest of A.P.P.,
  74 S.W.3d 570 (Corpus Christi 2002, no pet.) ................................................... 6

Jones v. Andrews,
  74 S.W.3d 570 (Corpus Christi 2002, no pet.) ................................................. 17

Lefton v. Griffith,
 873 S.W.2d 102 (Dallas 1994, no writ) ....................................................... 17-18

Norton v. Martinez,
 935 S.W.2d 898 (San Antonio 1996, no writ) .................................................... 5



                                                  vi
Sells v. Drott,
 259 S.W.3d 194 (Tyler 2007, rev’d on other grounds) ................................... 13

Transport Concepts, Inc. v. Reeves,
 748 S.W.2d 302 (Dallas 1998, no pet.) .............................................................. 14

Statutes and Rules

TEX. R. CIV. P. 243. ............................................................................................14, 16

TEX. DISCIPLINARY R. PROF'L CONDUCT 1.04(b). ................................................. 21

TEX. CIV. PRAC. & REM. CODE § 38.001. ............................................................... 22




                                                         vii
                        III.    STATEMENT OF THE CASE

       This is a breach of contract and negligence case brought by Fireman’s

Fund     Insurance      Company      as   Subrogee   of   United   Rentals,   Inc.

(“Fireman’s”) against Hofer Builders, Inc. (“Hofer”)1 Fireman’s filed a

motion for default judgment on November 18, 2014, attaching affidavit

testimony in support of its request for an award of unliquidated damages.2

The trial court granted Fireman’s motion, signing its Judgment on

December 8, 2014.3 Hofer timely filed a motion for new trial on January 5,

2015.4 The trial court denied this motion by order dated February 10, 2015.5

Hofer timely perfected this appeal on March 5, 2015.6


           IV.       STATEMENT REGARDING ORAL ARGUMENT

    Appellant requests oral argument.

                               V.   ISSUES PRESENTED

    Issue Number One: Hofer asks the Court to hold that the Trial Court

abused its discretion in denying Hofer’s Motion for New Trial. A trial


1 C.R. pgs. 5-9.
2 C.R. pgs. 10-19.
3 C.R. pgs. 20-21.
4 C.R. pgs. 24-32.
5 C.R. pg. 46.




                                          viii
court abuses its discretion when it acts without reference to any guiding

rules or principles. The Trial Court denied Hofer’s Motion for New Trial,

finding Hofer consciously indifferent based on imputation of Hofer’s

insurance carrier’s knowledge of Fireman’s final answer deadline to Hofer

after Hofer’s insurance carrier had notified Hofer and Fireman’s counsel

that it would not provide Hofer a defense in the lawsuit and was denying

coverage of Hofer’s claim. However, a principal is not affected by an

alleged agent’s knowledge when a third party unreasonably relies on the

agent’s apparent authority. Was it reasonable for Fireman’s counsel to rely

on Hofer’s insurance carrier’s apparent authority after it had been advised

by Hofer’s insurance carrier that it was not providing Hofer a defense and

was denying coverage or did the carrier’s notification terminate its

authority?


Issue Number Two: During a default judgment proceeding, affidavit

testimony will support the award of unliquidated damages if the affidavit

avers personal knowledge of the facts, describes the circumstances that

resulted in the loss, and identifies the total amount owed as a result.


6   C.R. pgs 47-48.


                                    ix
Documents that represent merely conclusory allegations, however, will not

support an award of unliquidated damages in a default judgment

proceeding. The evidence presented by Fireman’s in support of its

unliquidated   damages     award    consisted   of   a   business   records

authentication with attached claim inquiries and an estimate for repair

work, and the affidavit of Fireman’s counsel stating that a 33 1/3%

contingent fee is regular and accepted practice in Texas. Was the evidence

presented to the trial court sufficient to support the unliquidated damages

awarded?




                                     x
                           VI.   STATEMENT OF FACTS

    Fireman’s filed its Original Petition on April 15, 2014, asserting causes

of action for breach of contract and negligence for damage to a forklift

rented by Hofer.7 In accordance with the terms of its insurance policy,

Hofer promptly notified its insurance carrier of the lawsuit, after being

served with the lawsuit on May 5, 2014.8 When Hofer notified its insurance

carrier of the suit, its insurance carrier contacted Fireman’s counsel to

request an extension of the answer deadline for purposes of investigating

the claim.9 From this point forward, Fireman’s counsel communicated only

with the insurance carrier.10 Fireman’s counsel entered into several

agreements with the insurance carrier extending the answer deadline.11

    Upon conclusion of the investigation, the insurance carrier notified both

counsel for Fireman’s and Hofer that it would not cover the claim, nor

would it provide a defense.12 With the knowledge that the insurance carrier

was denying Hofer’s claim, Fireman’s counsel communicated Hofer’s new

answer deadline to the insurance carrier, requesting that the insurance


7 C.R. pg. 5-9.
8 C.R. pg. 31-32 ¶5.
9 C.R. pg. 31-32 ¶6, pg. 38.
10 C.R. pg. 31-32 ¶6.
11 C.R. pg. 38.




                                       1
carrier notify Hofer of the deadline.13 This deadline was not communicated

to Hofer, through its insurance carrier or by Fireman’s counsel, despite the

insurance carrier’s email communication to Fireman’s counsel representing

otherwise.14

     On November 18, 2014, Fireman’s filed its Motion for Default

Judgment, where its counsel certified that the motion had been delivered to

all parties or their respective counsel of record via certified mail, return

receipt requested.15 In its Motion, Fireman’s affirmatively represents that

its damages are unliquidated, and that the court can award damages based

upon affidavits without holding an evidentiary hearing.16 As evidence

proving its damages, Fireman’s attached: 1) an affidavit certifying business

records; 2) an estimate for repair work prepared by JLG Equipment

Services on March 1, 2013; 3) Internal Claim Inquiries demonstrating

payment by Fireman’s to its insured in the total amount of $27,418.34; and

4) an affidavit for attorney’s fees made by counsel for Fireman’s, stating




12 C.R. pg. 32 ¶7, pg. 40.
13 C.R. pg. 38-40
14 C.R. pg. 32 ¶8, pg. 40.
15 C.R. pg. 10-11.
16 C.R. pg. 10.




                                     2
that a 33 1/3% contingent fee is “reasonable and accepted practice in

Texas.”17

     Based on this evidence, the court signed its order granting default

judgment against Hofer on December 8, 2014.18 The court found that Hofer

was indebted to Fireman’s in the principal amount of $31,550.34, and

reasonable attorney’s fees in the amount of $12,460.31.19 The court then

ordered that Fireman’s should have and recover $37,418.34 from Hofer,

along with the $12,460.31 in attorney’s fees.20 Hofer timely filed a Motion

for New Trial (the “Motion”),21 which the trial court denied on February 10,

2015.22

                     VII. SUMMARY OF THE ARGUMENTS

     The trial court erred in denying Hofer’s Motion for New Trial on the

basis of its finding that Hofer’s failure to answer was not the result of

accident or mistake, but instead was the result of conscious indifference or

an intentional failure. Hofer presented sufficient affidavit testimony

demonstrating that it was not aware of the final answer deadline, resulting


17 C.R. pg. 13-19.
18 C.R. pg. 20-21.
19 Id.
20 Id.
21 C.R. pgs. 24-32




                                     3
in its failure to file an answer. Further, the evidence relied on by the trial

court in issuing its award of unliquidated damages is insufficient to

support the award. The affidavits submitted by Fireman’s in support of its

damages contain merely conclusory statements regarding the damages

sustained by Fireman’s.


                     VIII. ARGUMENTS AND AUTHORITIES

         A. The Trial Court Erred in Denying Hofer’s Motion for New Trial.
       The standard of review for a trial court’s denial of a motion for new

trial is the abuse of discretion standard.23 A trial court abuses its discretion

when it acts in an arbitrary or unreasonable manner, or in other words, if it

acts without reference to any guiding rules or principles.24 When a

defendant does not file an answer because of a mistake or accident, the

default judgment should be set aside and a new trial ordered in any case in

which the defaulting party can satisfy the three elements set forth in

Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939), which

are: 1) the party’s failure to file a response was not intentional or the result

of conscious indifference; 2) the party “sets up” at least one defense that, if


22   C.R. pg. 46
23   Champion Int’l Corp. v. Twelfth Court of Appeals, 762 S.W.2d 898, 899 (Tex. 1988).


                                                4
proven, counters the pleading at issue; and 3) the granting of a new trial

will not unfairly prejudice the opposing party.25


     Following a no answer default judgment, new trials have historically

been liberally granted because public policy prefers a trial on the merits.26

To that end, a defaulting party must provide some excuse, but not

necessarily a good excuse for failing to timely file an answer.27 Even a

“slight excuse” will suffice to set aside a default judgment.28 For example,

good faith reliance on the advice of an ostensible authority figure who had

no apparent legal authority was held sufficient to set aside a default

judgment.29


     A trial court abuses its discretion in denying a motion for new trial

when the Craddock elements are satisfied.30 Under Craddock, when the

defaulting party fails to answer in a timely manner due to accident or



24 Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
25 Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939).
26 See, e.g. Norton v. Martinez, 935 S.W.2d 898, 901 (Tex. App.—San Antonio 1996, no

writ); Ferguson & Co. v. Roll, 776 S.W.2d 692, 697 (Tex. App—Dallas 1989, no
writ); Gotcher v. Barnett, 757 S.W.2d 398, 402(Tex. App.—Houston [14th Dist.] 1988, no
writ).
27 Sutherland v. Spencer, 376 S.W.3d 752, 755 (Tex. 2012) citing In re R.R., 209 S.W.3d 112,

115 (Tex. 2006) (per curiam).
28 Comanche Nation v. Fox, 128 S.W.3d 745, 750 (Tex. App.—Austin 2004, no pet.) citing

Ferrell v. Ferrell, 820 S.W.2d 49 (Tex. App.—Corpus Christi 1991, no writ).


                                             5
mistake and not as the result of conscious indifference or an intention not

to respond, then, upon the defaulting party’s motion, the court must set

aside the resulting judgment and grant a new trial.31 “The absence of an

intentional failure to answer is the controlling factor under this analysis.”32

Consciously indifferent conduct occurs when the defendant knew it was

sued but did not care.33


     Here, the trial court denied Hofer’s Motion for New Trial on the basis

that Hofer failed to establish the first Craddock element, reasoning that: 1)

Hofer failed to file an answer based on the representations of an insurance

agent;34 2) Hofer did not contact an attorney immediately, but instead

contacted its insurance carrier;35 3) Hofer relied on its insurance carrier,

who was not an attorney, to represent it in the lawsuit;36 4) the insurance

carrier did not have authority to act on behalf of Hofer in obtaining


29Comanche Nation, 128 S.W.3d at 750.
30 Bank One, Texas, N.A. v. Moody, 830 S.W.2d 81, 85 (Tex. 1992).
31 See Craddock, 133 S.W.2d at 126; Dir., State Emps. Worker’s Comp. Div. v. Evans, 889

S.W.2d 266 (Tex. 1994) (Where the Craddock elements are satisfied, the court has no
discretion but to set aside the judgment.).
32 In the Interest of A.P.P., 74 S.W.3d 570, 573 (Tex. App.—Corpus Christi 2002, no pet.)

citing Craddock, 133 S.W.2d at 125.
33 Sutherland v. Spencer, 376 S.W.3d 752, 755 (Tex. 2012)
34 R.R. pg. 8, lines 23-25
35 R.R. pg. 9, lines 8-9
36 R.R. pg. 13 lines 24-25, pg. 14 lines 1-3, pg. 24, lines 21-22




                                           6
 


extensions of the answer deadline in a lawsuit;37 and 5) the insurance

carrier was acting as Hofer’s agent when the answer deadline was

conveyed, so Hofer must prove its failure to answer was not the result of

the insurance carrier’s conscious indifference or intentional conduct.38

Ultimately, the trial court concluded that, in order to grant Hofer’s Motion

for new trial, it would have required affidavit testimony from Fireman’s

counsel admitting that communicating the answer deadline only to the

insurance carrier was a mistake.39


        The first rule of law it appears the trial court applied in its decision was

that reliance upon an insurance agent to file an answer does not satisfy the

mistake or accident standard under the Craddock test.40 Application of this

rule of law to the facts at hand, however, was error. Hofer did not rely

upon its insurance agent to file an answer. Hofer notified its insurance

carrier of the lawsuit in accordance with the terms of its insurance policy

and relied upon its insurance carrier to conduct an investigation to




                                                            
37 See R.R. pg. 15, lines 11-12, 20-21, pg. 16, lines 8-14, pg. 17, lines 14-22
38 R.R. pg. 21, lines 22-25, pg. 22, lines 1-5, 11-25
39 R.R. pg. 25, lines 3-5, 7-9
40 Holt Atherton Industries, Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992).




                                                               7
determine whether it would be providing Hofer a defense in the lawsuit.41

When contacted by the insurance carrier, Fireman’s counsel entered into

several agreements with the insurance carrier for the extension of Hofer’s

answer deadline, so that the insurance carrier could conclude its

investigation of the claim without incurring the expense of providing a

defense while it was still investigating.42 The insurance carrier later notified

both Hofer and Fireman’s counsel that upon conclusion of its investigation,

it had determined it would not be providing a defense to the lawsuit.43


     The trial court went on to apply principles of agency law to impute the

insurance carrier’s knowledge of the answer deadline to Hofer for the

purpose of concluding that Hofer was consciously indifferent.44 The law

does not presume agency, and therefore the party asserting agency has the

burden to prove it.45 While Fireman’s alleges in its Response that the

insurance carrier was Fireman’s agent,46 one conclusory allegation cannot

be said to meet Fireman’s burden of proving the agency relationship.



41 See C.R. pgs. 31-32 ¶5.
42 See C.R. pg. 38.
43 C.R. pg. 32 ¶7, pg. 40.
44 R.R. pg. 24, lines 21-25
45 IRA Res., Inc. v. Griego, 221 S.W.3d 592, 597 (Tex. 2007).
46 C.R. pg. 35




                                              8
Fireman’s made no further argument with respect to the existence of the

alleged agency relationship at the hearing on Hofer’s motion for new

trial.47


     Generally, notice to, or knowledge of, an agent while acting within the

scope of his authority and in reference to a matter over which his authority

extends, is notice to, or knowledge of, the principal.48 However, a principal

will not be affected by an agent’s knowledge concerning a matter outside

the scope of the agent’s actual authority, but within the agent’s apparent

authority, unless a third person has relied on the agent’s apparent

authority.49 To determine an agent’s apparent authority, a court examines

the conduct of the principal and the reasonableness of the third party’s

assumptions about authority.50


     First, the insurance carrier’s actual authority was terminated upon

notification that it would not cover the claim or provide a defense in the

lawsuit.51 Second, it cannot be said that the insurance carrier continued to


47 See R.R. pg. 6, lines10-23; pg. 7, lines 22-25; pg. 8, lines 1-7; pg. 23, lines 20-25; pg. 24,
lines 1-12.
48 Irvine v. Grady, 19 S.W. 1028 (Tex. 1892).
49 RESTATEMENT 2D OF AGENCY § 273
50 Gaines v. Kelly, 235 S.W.3d 179, 183 (Tex. 2007).
51 See C.R. pg. 40.




                                               9
be cloaked in apparent authority after it had given notice to Hofer and

Fireman’s counsel, which notice Fireman’s counsel acknowledged

receiving, that it had denied coverage of the claim and would not be

providing a defense in the lawsuit.52 Therefore, Fireman’s counsel could

not rely upon or reasonably assume the insurance carrier had any apparent

authority for the purpose of imputing its knowledge to Hofer when he

conveyed the answer deadline on October 6, 2014,53 or when he served

notice of his motion for default judgment and hearing thereon. Therefore,

the insurance carrier’s knowledge of the answer deadline cannot be

imputed to Hofer since the insurance carrier did not have actual or

apparent authority to obtain the answer deadline on Hofer’s behalf or to

convey the answer deadline to Hofer.


       In light of Hofer’s affidavit testimony denying that it ever received

notice of the answer deadline, or of the motion for default judgment and

hearing thereon,54 Fireman’s was required to present evidence specifically

controverting the factual allegations made by Hofer with reference to the

first element of the Craddock test, or Hofer’s affidavit must be taken as true


52   Id.
53   Id.


                                      10
for the purposes of determining conscious indifference.55 For instance, in

Dir., State Emps. Workers’ Comp. Div. v. Evans, 889 S.W.2d 266 (Tex. 1994),

the State’s motion for new trial and attached affidavits stated facts that

negated that its failure to appear was intentional or the result of conscious

indifference.56 The State’s counsel was misinformed by her predecessor

about the trial setting, and believed it was on a later date.57


     Although Evans presented testimony that the State’s counsel’s secretary

had knowledge of the trial setting, pointed to the State’s affidavit that

counsel had reviewed the case file, and attached exhibits establishing the

trial setting and the letters sent regarding the case, the court found that

Evans did not specifically controvert State’s counsel’s belief that the trial

setting was on a later date.58 Therefore, the State’s affidavit, for the purpose

of establishing lack of conscious indifference, was taken as true, and a new

trial was granted.59




54 C.R. pg. 32 ¶8-9.
55 See Dir., State Emples. Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994).
56 Id.
57 Id.
58 Id.
59 Id. citing Estate of Pollack v. McMurrey, 858 S.W.2d 388, 391 (Tex. 1993).




                                             11
     The evidence presented by Fireman’s was the affidavit of Fireman’s

counsel authenticating attached email communications as business

records.60 The affidavit discusses his communications with the insurance

carrier related to transmitting the message to Hofer that there was a new

answer deadline of October 10, 2014, and that if no answer was filed by

then, Fireman’s would file a motion for default judgment.61 The attached

email communications include the representation of the insurance carrier

that the message was conveyed, as requested, to Hofer.62 Hofer was not

copied on any of these email communications.63 Hofer presented sworn

affidavit testimony that the answer deadline was not conveyed.64


     Fireman’s did not present any affidavit testimony swearing that the

answer deadline was conveyed to Hofer.65 The trial court relied on an

unsworn statement from the insurance carrier contained in an email

communication to Fireman’s counsel, in the face of Hofer’s sworn

testimony that the deadline was not conveyed, in finding that Hofer knew



60 C.R. pgs. 38-45.
61 C.R. pg. 38.
62 C.R. pg. 40.
63 C.R. pgs. 40-45.
64 C.R. pg. 32 ¶8.
65 See C.R. pgs. 38-45.




                                    12
of the answer deadline, but did not care.66 An unsworn statement in an

email communication that a message was conveyed to a third party is no

evidence that the third party ultimately received notice.67 Therefore,

Fireman’s has presented no evidence controverting Hofer’s sworn

statement that it did not receive notice of the new answer deadline.68 For

the foregoing reasons, the trial court’s finding that Hofer’s failure to

answer was not the result of an accident or mistake, but instead was the

result of conscious indifference is unsupported and an insufficient basis for

the trial court’s denial of Hofer’s motion for new trial.


     Although not addressed by the trial court, Hofer also satisfied both

other elements of the Craddock test. Hofer set up a meritorious defense by

alleging that a manufacturing defect, and not any action of Hofer, was the

cause of the equipment failure and resulting damage.69 These facts, if true,

would establish a sole cause defense.70 Finally, Hofer satisfied the third

Craddock element by alleging that granting a new trial would not injure



66 See R.R. pg. 22, lines 12-15, 21-25; pg. 24, lines 23-25
67 See Sells v. Drott, 259 S.W.3d 194, 199 (Tex. App.—Tyler 2007, rev’d on other grounds)
citing Cruz v. State, 737 S.W.2d 74, 76 (Tex. App.—San Antonio 1987, no writ).
68 See Evans, 889 S.W.2d at 269.
69 See Evans, 889 S.W.2d at 270; C.R. pgs. 28-29.
70 See id.




                                           13
Fireman’s and that Hofer was prepared to proceed expeditiously to trial.71

Once Hofer made the allegation that granting a new trial would not injure

Fireman’s, the burden of going forward with proof of injury shifted to

Fireman’s.72 Fireman’s did not allege, nor prove any injury it would sustain

as the result of granting a new trial.73 Hofer, therefore, has established the

second and third Craddock elements. Because Hofer established all three

elements of the Craddock test, the trial court abused its discretion by not

granting Hofer’s motion for new trial.


       B. The Evidence is Legally and Factually Insufficient to Support
          the Unliquidated Damages Award.

     When a no-answer default judgment is taken on an unliquidated claim,

all allegations of fact set forth in the petition are deemed admitted, except

for the amount of damages.74 The plaintiff must present evidence of

unliquidated damages, and this evidence must be both competent and

consistent with the cause of action plead.75 Proof of damages must


71 Id. citing Angelo v. Champion Rest. Equip. Co., 713 S.W.2d 96, 98 (Tex. 1986); C.R.
72 Id.
73 C.R. pg. 36.
74 Tex. Commerce Bank, Nat'l. Assn. v. New, 3 S.W.3d 515, 516 (Tex. 1999) (per

curiam); Transport Concepts, Inc. v. Reeves, 748 S.W.2d 302, 305 (Tex. App.-Dallas 1998,
no writ, no pet.); TEX. R. CIV. P. 243 (if cause of action is unliquidated, court "shall hear
evidence as to damages").
75 Id.; see TEX. R. CIV. P. 243.




                                             14
necessarily include proof of a causal connection between the event sued

upon and the alleged damages.76 Therefore, when damages are

unliquidated, the plaintiff must also present competent evidence of the

“causal nexus” between the event sued upon and the plaintiff’s injuries.77

For instance, to recover consequential damages in a breach of contract

action, the plaintiff must show that the damages sought were the natural,

probable, and foreseeable consequence of the defendant’s conduct.78

     When a specific attack is made on the legal and factual sufficiency of

the evidence to support the trial court's determination of damages in

a default judgment, the court must review the evidence produced.79 The

appellate court will sustain a legal or no-evidence challenge if the record

shows one of the following: (1) a complete absence of evidence of a vital

fact; (2) rules of law or evidence bar the court from giving weight to the

only evidence offered to prove a vital fact; (3) the evidence offered to prove

a vital fact is no more than a scintilla; or (4) the evidence establishes




76 Interconex, Inc. v. Ungaro, 224 S.W.3d 523, 530-31 (Tex. App.—Houston [1st Dist.] 2007,
no pet.).
77 Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731-32 (Tex. 1984).
78 Gotch v. Gotch, 416 S.W.3d 633, 637-38 (Tex. App.—Houston [1st Dist.] 2007, pet.

denied).


                                           15
conclusively the opposite of a vital fact.80 When the plaintiff specifically

requests and apparently receives certain amounts for particular elements of

damages in a default judgment hearing pursuant to Texas Rule of Civil

Procedure 243, the court may review the sufficiency of the evidence to

support the specific awards requested and apparently received.81

     During a default judgment proceeding, affidavit testimony will support

the award of unliquidated damages if the affidavit avers personal

knowledge of the facts, describes the circumstances that resulted in the

loss, and identifies the total amount owed as a result.82 But documents that

represent merely conclusory allegations are no evidence of damages at all

and will not support an award of unliquidated damages in a default

judgment proceeding.83

     For instance, in Tex. Commerce Bank, 3 S.W.3d 515, 516 (Tex. 1999), the

trial court awarded unliquidated damages in a default judgment to the




79  Id. at 751; see generally Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (Tex.
2003), citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (factual sufficiency of
evidence supporting damages).
80 Interconex, Inc. v. Ugarov, 224 S.W.3d 523, 530 (Tex. App.—Houston [1st Dist. 2007, no

pet.).
81 Dawson v. Briggs, 107 S.W.3d 739, 749 (Tex. App.—Beaumont 1993, no pet.).
82 Dodd v. Savino, 426 S.W.3d 275, 293 (Tex. App.—Houston [14th Dist.] 2014, no pet.

h.) citing Tex. Commerce Bank, 3 S.W.3d at 517).


                                             16
plaintiff on the basis of affidavit testimony supporting damages and

attorney’s fees.84 On review by the Supreme Court of Texas, the sufficiency

of the affidavit testimony from the plaintiff in support of its claim for

damages was upheld.85 The affidavit in support of the damage award

explained how liability had been incurred, detailed the specifics of a check-

kiting scheme perpetrated by the defendants, and stated that the affiant

had reviewed pertinent bank records and determined that the overdrawn

balance was $729,510.96.86 The attorney’s fees affidavit stated that the

attorney believed his fee of $30,000 was reasonable based on the services

rendered, which he then detailed.87

     By comparison, in Lefton v. Griffith, 136 S.W.3d 271 (Tex. App.—San

Antonio 2004, no pet.), the affidavit testimony provided to the trial court

was legally insufficient to support an award for damages.88 The affiant

failed to provide a factual basis or explanation for how she arrived at the




83 Lefton v. Griffith, 136 S.W.3d 271, 277 (Tex. App.—San Antonio 2004, no pet.) citing
Jones v. Andrews, 873 S.W.2d 102, 107 (Tex. App.—Dallas 1994, no writ).
84 Tex. Commerce Bank, 3 S.W.3d at 515.
85 Id at 517.
86 Id.
87 Id. at 517-18.
88 Lefton, 136 S.W.3d at 277.




                                          17
damage amounts in her affidavit, even though she was clearly qualified to

testify about the figures.89

       The affidavit filed by Fireman’s as evidence in support of its first

damage component is insufficient to prove the amount of damages

awarded in the default judgment. The affidavit in support of the $37,418.34

damage figure is merely a business records authentication. It does not

provide a factual basis or explanation detailing how the figure was

calculated, but instead points to attached business records providing “an

itemized statement of the damages sustained by Fireman’s as a result of the

occurrence made the basis of this lawsuit.” The affiant goes on to testify

that “[T]he amount of reasonable and necessary damages sustained by

Fireman’s Fund Insurance Company as a result of the occurrence made the

basis of this lawsuit is $37,418.34.” This affidavit testimony is merely a

conclusory allegation as to the figure of damages provided and as to the

causal nexus between the event made the basis of the lawsuit and

Fireman’s injuries giving rise to damages.

       At most, the business records attached to the affidavit demonstrate that

Fireman’s suffered only $27,418.34 in damages. The larger figure,


89   Id.


                                        18
presumably, is derived from the attached estimate for repair work

prepared by JLG Equipment Services, Inc. for United Rentals. There is,

however, no evidence that this company actually performed the repairs, or

that the final repair bill was the same as the attached estimate. The claim

inquiries attached to the affidavit, detailing payments made by Fireman’s

to its insured, represent that Fireman’s has issued two checks to its insured,

United Rentals, Inc., in the amounts of $10,782.41 and $16,635.93.

   The affidavit and the attached documentation fail to establish a “causal

nexus” between the event sued upon and the plaintiff’s injuries. Neither

the estimate for repair of equipment or Fireman’s internal claim inquiries

provide any indication that the damage figures outlined therein resulted

from the alleged damage to the forklift at issue in the underlying lawsuit

against Hofer. In fact, neither piece of evidence demonstrates any

connection between the event sued upon and the damages allegedly

suffered by Fireman’s. Fireman’s internal claim inquiries reflect payments

Fireman’s made to its insured which could be for any number of potential

losses under its insurance policy with Fireman’s.

   The affidavit utilized by Fireman’s in support of its attorney’s fee

award is also insufficient evidence to support the judgment awarding


                                      19
attorney’s fees in the amount of $12,460.31. Counsel for Fireman’s testified

in his affidavit that “It is a reasonable and accepted practice in Texas, that

the minimum fee contract for such legal representation should be 33 1/3%

of the amount of the Plaintiff’s claim.90 The amount of reasonable

attorney’s fees in this case which is in accordance with local practice is the

sum of at least $12,460.31…,” which is 33 1/3% of the damage award in the

case, $37,418.34.91

       The mere fact that a party and lawyer have agreed to a contingent fee

does not mean that the fee arrangement is in and of itself reasonable for

purposes of shifting that fee to the defendant.92 Accordingly, while it is

‘regular practice’ that many plaintiffs must contract for a contingent fee to

secure the services of a lawyer, the Supreme Court of Texas has refused to

allow the shifting of the plaintiff’s entire contingent fee to the defendant

without consideration of the factors required by the Rules of Professional

Conduct.93

       These factors are: the time and labor required, the novelty and difficulty

of the questions involved, and the skill required to perform the legal



90   C.R. pg. 18.
91   See. C.R. pg. 18, 21.


                                         20
services properly in this arbitration; the likelihood that the acceptance and

pursuit of this particular matter has and will preclude other employment

by me until this proceeding is concluded; the fee customarily charged in

the locality for similar legal services; the amount involved and the results

obtained; the time limitations imposed by the circumstances of this

arbitration proceeding; the nature and length of my professional

relationship with the client; the experience, reputation, and ability of the

lawyer or lawyers performing the services in this arbitration proceeding;

and the fact that the attorney’s recovery of any fee in this matter is

contingent on results obtained coupled with the uncertainty of collection

before the legal services have been rendered.94 None of the required factors

were addressed in Fireman’s attorney’s fees affidavit, which was the only

evidence offered in support of the attorney’s fee award.95

     Further, Fireman’s failed to segregate its attorney’s fees related solely to

a claim for which fees are unrecoverable. Fireman’s asserted causes of

action for breach of contract and negligence.96 Texas has long adhered to


92 Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).
93 Id.
94 TEX. DISCIPLINARY R. PROF'L CONDUCT 1.04(b).
95 C.R. pgs. 18-19.
96 C.R. pgs. 5-9.




                                            21
the American Rule with respect to awards of attorney’s fees, which

prohibits the recovery of attorney’s fees from an opposing party in legal

proceedings unless authorized by statute or contract.97 The contract

between Fireman’s insured and Hofer is not in the record.98 Although

recovery of attorney’s fees for a breach of contract clam is permitted by

statute,99 attorney’s fees are not recoverable in a negligence suit.100

Therefore, Fireman’s was required to segregate the attorney’s fees it

incurred in prosecution of the negligence cause of action from those

incurred in prosecution of its breach of contract claim.101 As Fireman’s

failed segregate its attorney’s fees related solely to a claim for which fees

are unrecoverable, the award cannot stand.

     No hearing was held on damages, the award was instead based solely

on affidavits. The above-described shortcomings in the affidavits

considered by the court in awarding unliquidated damages in its default

judgment render those awards invalid because they are not supported by

sufficient evidence.


97 Tucker v. Thomas, 419 S.W.3d 292,295 (Tex. 2013).
98 See C.R. pgs. 5-19.
99 TEX. CIV. PRAC. & REM. CODE § 38.001.
100 New Amsterdam Cas. Co. v. Tex. Indus., Inc., 414 S.W.2d 914, 915 (Tex. 1967).
101 See Tony Gullo Motors I, L.P. v. Chapa, 212 S.W. 3d 299, 313-14 (Tex. 2006).




                                             22
      C.      Conclusion

   The trial court erred in denying Hofer’s Motion for New Trial. Hofer’s

failure to answer Fireman’s petition was the result of an accident or

mistake, a miscommunication amongst Fireman’s counsel, Hofer’s

insurance carrier, and Hofer, and was not the result of Hofer’s intentional

failure or conscious indifference. Hofer set up a meritorious defense by

alleging that a manufacturing defect, and not any action of Hofer, was the

cause of the equipment failure and resulting damage. Finally, Hofer

alleged that granting a new trial would not injure Fireman’s and that Hofer

was prepared to proceed expeditiously to trial and Fireman’s failed to

allege or prove any injury it would sustain as the result of granting a new

trial. Hofer, therefore, established all three elements of the Craddock test,

and the trial court’s denial of Hofer’s motion for new trial was an abuse of

discretion.

   The evidence relied on by the trial court in issuing its award of

unliquidated damages is also insufficient to support the award. The

affidavits submitted by Fireman’s in support of its damages contain merely

conclusory statements regarding the damages sustained by Fireman’s,

which can not support an award of unliquidated damages in a default


                                     23
judgment proceeding.

                               IX.   PRAYER


      For these reasons, Hofer Builders, Inc., Appellant, requests that this

court hold that the trial court’s denial of Hofer’s Motion for New Trial was

an abuse of discretion, vacate the trial court’s default judgment, and

remand the case to the trial court for a new trial. However, if this court

does not hold that the trial court’s denial of Hofer’s Motion for New Trial

was an abuse of discretion, vacate the trial court’s default judgment, and

remand the case to the trial court for a new trial, Appellant requests that

this court hold that the evidence in support of the trial court’s unliquidated

damage award is insufficient, vacate the unliquidated damages award, and

remand the case to the trial court for a hearing on damages. Appellant also

requests any other relief to which he may be entitled.


                       X. CERTIFICATE OF SERVICE

   The undersigned hereby certifies that a true and correct copy of the

above and foregoing Appellant’s Brief has been served on the following

counsel of record via facsimile on June 3, 2015:




                                      24
   Jeffrey S. Reddall
   THE LAW OFFICE OF JEFFREY S. REDDALL
   One Sugar Creek Center Blvd., Suite 925
   Sugar Land, Texas 77478
   Facsimile: (281) 313-6803




                                   Edward S. Cox



Certificate of Compliance with Texas Rule of Appellate Procedure 9.4(i)

    The undersigned hereby certifies that this document contains 4,922
words, as indicated by the word-count function of the computer program
used to prepare it, and excluding the caption, identity of parties and
counsel, statement regarding oral argument, table of contents, index of
authorities, statement of the case, statement of issues presented, statement
of jurisdiction, statement of procedural history, signature, proof of service,
certification, certificate of compliance, and appendix, as provided by
Appellate Rule 9.4(i).




                                   Edward S. Cox, Attorney for Appellant




                                     25
 


            XI.      APPENDIX IN SUPPORT OF APPELLANT’S BRIEF

     Appellant Hofer Builders, Inc. hereby submits this Appendix in

Support of his Appellant’s Brief.

                                                      Index

     Description                                                                   Appendix Page No.


Trial Court’s Judgment signed December 8, 2014 ...........................................A1

Trial Court’s Order signed February 10, 2015 .................................................A3                            


TEX. R. CIV. P. 243. .................................................................................................A4

TEX. DISCIPLINARY R. PROF'L CONDUCT 1.04(b). ................................................A5

TEX. CIV. PRAC. & REM. CODE § 38.001. ..............................................................A7

Excerpts from Clerk’s Record.............................................................................A8

Excerpts from Reporter’s Record .....................................................................A44




                                                          26
                                     No. 2014-001872-3

FIREMAN'S FUND INSURANCE COMPANY §                       IN THE COUNTY COURT
AS SUBROGEE OF UNITED RENTALS, INC. §
                                                  §      AT LAW NUMBER 3 OF
~                                                 §
                                                  §
HOFER BUILDERS, INC.                              §      TARRANT COUNTY, TEXAS

                                        JUDGMENT

       On the   J.1 day of   Ne.·~ , 2~, came to be heard the above-entitled and

numbered cause where in FIREMAN'S FUND INSURANCE COMPANY AS SUBROGEE

OF UNITED RENTALS, INC. is Plaintiff and HOFER BUILDERS, INC. is Defendant.

Plaintiffs appeared in person and through their attorney of record and announced ready for

trial. The Defendant, although having been duly and legally cited to appear and answer,

failed to appear and answer, and wholly made default.

       Citation was served according to law and returned to the clerk where it has remained

on file for the time required by law. The Court has read the pleadings and papers on file,

and is of then opinion that the allegations of Plaintiffs Original Petition have been admitted

and that the cause of action is unliquidated and upon good and sufficient evidence

presented to the Court finds that the Defendant is indebted to Plaintiffs in the amount of

$31,550.34; reasonable attorney's fees in the amount of $12,460.31, and the amount of

$5,000.00 in the event an appeals bond is filed in this matter as a reasonable attorney's fee

and an additional $5,000.00 as a reasonable attorney's fee in the event a Writ of Error is

filed with the Texas Supreme Court; prejudgment interest at the rate of 5% per annum from

April 151 2014, until the date of judgment; post judgment interest at the rate of 5% per annum

from the date of judgment until paid; and costs of court.

       IT IS, THEREFORE, ORDERED, ADJUDGED AND DECREED by the Court that




                                                                                           ~fwNED
                                                                                          }·l!Ec -~ 9'-2011t
                                                                                                     Page 20
~   .   ..


             Plaintiff, FIREMAN'S FUND INSURANCE COMPANY AS SUBROGEE OF UNITED

             RENTALS, INC., have and recover of and from Defendant, HOFER BUILDERS, INC.:

                    1.        The principal sum of $37,418.34;

                    2.        Refisonable attorney's fees in the amount of $12,460.31, and the amount of
                              $5,000.00 in the event an appeals bond is filed in this matter as a reasonable
                              attorney's fee and an additional $5 1000.00 as a reasonable attorney's fee in
                              the event a Writ of Error is filed with the Texas Supreme Court;

                    3.        Costs of Court;

                   4.         prejudgment interest at the rate of 5% per annum from April 15, 2014, until
                              the date of judgment;

                    5.        Post-judgment interest at the rate 5% per annum from the date of judgment
                              until paid.

                    IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the parties are

             allowed such writs and processes as may be necessary in the collection or enforcement of

             this judgment.

                   SIGNED thi · ?:__ day of


                                                          JUDGE PRESIDING

             APPROVED:

             Isl Jtffre.,y S. R~
             Jeffrey S. Reddall
             State Bar No. 16659200
             Comerica Bank Buifding
             One Sugar Creek Center Blvd., Suite 925
             Sugar Land, Texas 77478
             Tel: (281) 242-6010
             FAX: (281) 313-6803
             E-mail: jeff@reddall-law.com

             ATTORNEY FOR PLAINTIFF




                                                                                                               Page 21
                                  No. 2014-001872-3

FIREMAN'S FUND INSURANCE COMPANY §                    IN THE COUNTY COURT
AS SUBROGEE OF UNITED RENTALS, INC. §
                                               §      AT LAW NUMBER 3 OF
vs.                                            §
                                               §
HOFER BUILDERS, INC.                           §      TARRANT COUNTY, TEXAS

                                        ORDER

      On this day came on to be heard Defendant's Motion for New Trial. The Court,

having read the papers on file and heard arguments of counsel is of the opinion that

said motion should be, and is hereby in all things, DENIED.


      SIGNED this~ day of       r...L ...... / , 20~     ~

                                        JUDGE PRESIDING




                                                                            SCAN NE[
                                                                           FEB 1 9 2015Page 46
                       [RULE 242. Repealed effective December 31, 1941]


                           RULE 243. UNLIQUIDATED DEMANDS

If the cause of action is unliquidated or be not proved by an instrument in writing, the court shall
hear evidence as to damages and shall render judgment therefor, unless the defendant shall demand
and be entitled to a trial by jury in which case the judgment by default shall be noted, a writ of
inquiry awarded, and the cause entered on the jury docket.


                         RULE 244. ON SERVICE BY PUBLICATION

Where service has been made by publication, and no answer has been filed nor appearance entered
within the prescribed time, the court shall appoint an attorney to defend the suit in behalf of the
defendant, and judgment shall be rendered as in other cases; but, in every such case a statement of
the evidence, approved and signed by the judge, shall be filed with the papers of the cause as a part
of the record thereof. The court shall allow such attorney a reasonable fee for his services, to be
taxed as part of the costs.


                     RULE 245. ASSIGNMENT OF CASES FOR TRIAL

The court may set contested cases on written request of any party, or on the court's own motion, with
reasonable notice of not less than forty-five days to the parties of a first setting for trial, or by
agreement of the parties; provided, however, that when a case previously has been set for trial, the
Court may reset said contested case to a later date on any reasonable notice to the parties or by
agreement of the parties. Non-contested cases may be tried or disposed of at any time whether set
or not, and may be set at any time for any other time.

A request for trial setting constitutes a representation that the requesting party reasonably and in
good faith expects to be ready for trial by the date requested, but no additional representation
concerning the completion of pretrial proceedings or of current readiness for trial shall be required
in order to obtain a trial setting in a contested case.




                   RULE 246. CLERK TO GIVE NOTICE OF SETTINGS

The clerk shall keep a record in his office of all cases set for trial, and it shall be his duty to inform
any non-resident attorney of the date of setting of any case upon request by mail from such attorney,
accompanied by a return envelope properly addressed and stamped. Failure of the clerk to furnish
such information on proper request shall be sufficient ground for continuance or for a new trial when
it appears to the court that such failure has prevented the attorney from preparing or presenting his
claim or defense.
6/4/2015                                                 Texas Disciplinary Rules of Professional Conduct

  Texas Disciplinary Rules of Professional Conduct

  (Tex. Disciplinary R. Prof. Conduct, (1989) reprinted in Tex. Gov’t Code Ann., tit.2, subtit. G, app.

  (Vernon Supp. 1995)(State Bar Rules art. X  [[section]] 9)

  I CLIENT­LAWYER RELATIONSHIP

  Rule 1.04 Fees (Amended March 1, 2005)

  (a)      A lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or  
  unconscionable fee. A fee is unconscionable if a competent lawyer could not form a reasonable
  belief that the fee is reasonable.

  (b)      Factors that may be considered in determining the reasonableness of a fee include, but not
  to the exclusion of other relevant factors, the following: 

                      (1)   the time and labor required, the novelty and difficulty of the questions

                            involved, and the skill requisite to perform the legal service properly;

                      (2)   the likelihood, if apparent to the client, that the acceptance of the
                      particular employment will preclude other employment by the lawyer;

                      (3)   the fee customarily charged in the locality for similar legal services;

                      (4)   the amount involved and the results obtained;

                      (5)   the time limitations imposed by the client or by the circumstances;

                      (6)   the nature and length of the professional relationship with the client;

                      (7)    the experience, reputation, and ability of the lawyer or lawyers
                      performing the services; and

                      (8)   Whether the fee is fixed or contingent on results obtained or
                      uncertainty of collection before the legal services have been rendered.

  (c)      When the lawyer has not regularly represented the client, the basis or rate of the fee shall
  be communicated to the client, preferably in writing, before or within a reasonable time after
  commencing the representation.

  (d)      A fee may be contingent on the outcome of the matter for which the service is rendered,
  except in a matter in which a contingent fee is prohibited by paragraph (e) or other law. A
  contingent fee agreement shall be in writing and shall state the method by which the fee is to be
  determined. If there is to be a differentiation in the percentage or percentages that shall accrue to
  the lawyer in the event of settlement, trial or appeal, the percentage for each shall be stated. The
  agreement shall state the litigation and other expenses to be deducted from the recovery, and
  whether such expenses are to be deducted before or after the contingent fee is calculated. Upon
  conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement
  describing the outcome of the matter and, if there is a recovery, showing the remittance to the
  client and the method of its determination.

  (e)      A lawyer shall not enter into an arrangement for, charge, or collect a contingent    fee for
  representing a defendant a defendant in a criminal case.  


https://www.law.uh.edu/libraries/ethics/trpc/1.04.html                                                      1/6
6/4/2015                                                 Texas Disciplinary Rules of Professional Conduct

  (f) A division or arrangement for division of a fee between lawyers who are not in the same firm
  may be made only if:

            (1) the division is:

                      (i) in proportion to the professional services performed by each lawyer; or

                      (ii) made, between lawyers who assume joint responsibility for the
                      representation; and

            (2) the client consents in writing to the terms of the arrangement prior to the time of
            the association or referral proposed, including

                      (i) the identity of all lawyers or law firms who will participate in the fee­
                      sharing agreement, and    

                      (ii) whether fees will be divided based on the proportion of services
                      performed or by lawyers agreeing to assume joint responsibility for the
                      representation, and

                      (iii) the share of the fee that each lawyer or law firm will receive or, if the
                      division is based on the proportion of services performed, the basis on
                      which the division will be made; and

            (3) the aggregate fee does not violate paragraph (a).

  (g) Every agreement that allows a lawyer or law firm to associate other counsel in the
  representation of a person, or to refer the person to other counsel for such representation, and that
  results in such an association with or referral to a different law firm or a lawyer in such a different
  firm, shall be confirmed by an arrangement conforming to paragraph (f). Consent by a client or a
  prospective client without knowledge of the information specified in subparagraph (f)(2) does not
  constitute a confirmation within the meaning of this rule. No attorney shall collect with any such
  agreement that is not confirmed in that way, except for:

            (1) the reasonable value of legal services provided to that person; and

            (2) the reasonable and necessary expenses actually incurred on behalf of that person.

  (h) Paragraph (f) of this rule does not apply to payment to a former partner or associate pursuant
  to a separation or retirement agreement, or to a lawyer referral program certified by the State Bar
  of Texas in accordance with the Texas Lawyer Referral Service Quality Act, Tex. Occ. Code 952.001
  et seq., or any amendments or recodifications thereof.

  Comments

  Comments developed by the Referral Fee Task Force are included here to ensure that Texas lawyers
  have information about the intent behind the proposals. Comments are not voted on as part of the
  Referendum.

  Comment:

  1.      A lawyer in good conscience should not charge or collect more than a reasonable fee,
  although he may charge less or no fee at all. The determination of the reasonableness of a fee, or
  of the range of reasonableness, can be a difficult question, and a standard of reasonableness is too
  vague and uncertain to be an appropriate standard in a disciplinary action. For this reason,
  paragraph (a) adopts, for disciplinary purposes only, a clearer standard: the lawyer is subject to
  discipline for an illegal fee or an unconscionable fee. Paragraph (a) defines an unconscionable fee in
https://www.law.uh.edu/libraries/ethics/trpc/1.04.html                                                      2/6
6/3/2015                                      CIVIL PRACTICE AND REMEDIES CODE CHAPTER 38. ATTORNEY'S FEES

   
                                                        
                                              CIVIL PRACTICE AND REMEDIES CODE

                                         TITLE 2. TRIAL, JUDGMENT, AND APPEAL

                                                           SUBTITLE C. JUDGMENTS

                                                   CHAPTER 38. ATTORNEY'S FEES

       Sec. 38.001.  RECOVERY OF ATTORNEY'S FEES.  A person may recover 
  reasonable attorney's fees from an individual or corporation, in 
  addition to the amount of a valid claim and costs, if the claim is 
  for:
                       (1)  rendered services;
                       (2)  performed labor;
                       (3)  furnished material;
                       (4)  freight or express overcharges;
                       (5)  lost or damaged freight or express;
                       (6)  killed or injured stock;
                       (7)  a sworn account;  or
                       (8)  an oral or written contract.

  Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


       Sec. 38.002.  PROCEDURE FOR RECOVERY OF ATTORNEY'S FEES.  To 
  recover attorney's fees under this chapter:
           (1)  the claimant must be represented by an attorney;
           (2)  the claimant must present the claim to the opposing 
  party or to a duly authorized agent of the opposing party;  and
           (3)  payment for the just amount owed must not have been 
  tendered before the expiration of the 30th day after the claim is 
  presented.

  Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985.


       Sec. 38.003.  PRESUMPTION.  It is presumed that the usual and 
  customary attorney's fees for a claim of the type described in Section 
  38.001 are reasonable.  The presumption may be rebutted.


http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.38.htm                                                  1/2
                                                                            E-FILED
                                                                            TARRANT COUNTY, TEXAS
                                                                            4/15/2014 12:04:47 PM
                                                                            MARY LOUISE GARCIA
                                                                            COUNTY CLERK
                                             2014-001872-3                  BY: T.W. B.
                                  No. _______________

FIREMAN’S FUND INSURANCE COMPANY §                      IN THE COUNTY COURT
AS SUBROGEE OF UNITED RENTALS, INC.                     §
                                   §                    AT LAW NUMBER ___ OF
VS.                                §
                                   §
HOFER BUILDERS, INC.               §                     TARRANT COUNTY, TEXAS

                           PLAINTIFF'S ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

       COMES NOW, FIREMAN’S FUND INSURANCE COMPANY AS SUBROGEE OF

UNITED RENTALS, INC., (hereinafter referred to as FIREMAN’S FUND), Plaintiff's in the

above-entitled and numbered cause, complaining of HOFER BUILDERS, INC.,

Defendant, and would show as follows:

                                             I.

              The damages sought by Plaintiff herein are within the jurisdictional limits of

the Court. Plaintiff seeks only monetary relief of $100,000.00 or less, including damages

of any kind, penalties, costs, expenses, pre-judgment interest, and attorney’s fees.

                                             II.

       Plaintiff, FIREMAN’S FUND, is an insurance corporation authorized to do business

under the laws of the State of Texas.

       Defendant, HOFER BUILDERS, INC., is a Texas corporation which may be

served with process through its registered agent, Tom Hofer, 3909 Huckleberry Dr., Fort

Worth, Texas 76137.

                                             III.

       It has become necessary to bring this lawsuit to recover the legal damages

sustained by Plaintiff as a result of an incident which occurred on or about November 15,




                                                                                               Page 5
2012, and damages Plaintiff’s property. On the date in question Defendant was the renter

of a JLG Forklift owned by United Rentals, Inc. While the equipment was in the exclusive

control of Defendant, said equipment was damaged.

       Pursuant to the rental agreement between Defendant and United Rentals, Inc.,

Defendant accepted full responsibility for all loss/damage to the rented equipment,

regardless of cause. As a result of the loss on November 15, 2012, the equipment owned

by United Rentals, Inc. was severely damaged.

                                              IV.

       Defendant had a contractual obligation to pay for any damage sustained by the

boom lift while in her possession, irregardless of the cause. Defendant has failed to pay

for the damages to the rented equipment and said failure is a breach of the contract

resulting in damages to Plaintiff in the amount of $37,418.34.

                                              V.

       Realleging and incorporating the facts set forth above, Plaintiff would further show

that Defendant was negligent in the following respects:

       1.     Failing to properly use the equipment in the manner for which it was

              intended;

       2.     Using the equipment in a manner which subjected it to a reasonably

              foreseeable risk of harm;

       3.     Failing to secure the equipment in a safe place while not in use.

       Each of the foregoing acts of negligence on the part of Defendant were the

proximate cause of Plaintiff's resulting damages. Nothing said Plaintiff did or failed to do in

any way caused or contributed to cause the occurrence in question.




                                                                                                  Page 6
                                            VI.

       Because of the damages sustained by Plaintiff in the occurrence made the basis of

this suit, this cause is maintained. As a result of the damages heretofore pled, Plaintiff

would show this Court that Plaintiff has been damaged in an amount within the

jurisdictional limits of the Court.

                                            VII.

       Plaintiff, FIREMAN’S FUND, would show that it is interested in the subject matter of

this suit by reason of the fact that on or about November 15, 2012, and at all times

material to this cause of action, it had in full force and effect a standard Texas Insurance

Policy, which policy was issued for valuable consideration to UNITED RENTALS, INC.

Such policy was duly endorsed and provided for damage to or loss of the owned

equipment for damages in excess of the deductible amount stated in the declarations

thereto.

       As a result of the incident made the basis of this lawsuit, Defendant’s breach of the

rental agreement, and Defendant’s negligence, as described herein, Plaintiff, FIREMAN’S

FUND, was called upon to pay and did pay for the damages to the equipment owned by

UNITED RENTALS, INC.             UNITED RENTALS, INC.'S vehicle was damaged in the

amount of $37,418.34. On November 15, 2012, this sum of money was the reasonable

cost necessary to repair UNITED RENTALS, INC.’S equipment caused by the loss. This

amount also represents the difference in the fair market value of UNITED RENTALS,

INC.’S equipment immediately before and immediately after the accident, for which

Defendant is liable to Plaintiff.

       As a result of the incident described herein, Plaintiff, FIREMAN’S FUND, was called




                                                                                               Page 7
upon to pay, and did pay, under the physical damage coverage on the policy which was in

effect at the time of the accident described herein.        Plaintiff, FIREMAN’S FUND, is

subrogated under the terms of the policy to the rights of UNITED RENTALS, INC. Such

policy was duly endorsed and provided benefits to UNITED RENTALS, INC. in the amount

of $37,418.34, for which sum Plaintiff, FIREMAN’S FUND, affirmatively alleges a cause of

action and prays for judgment against Defendant.

                                             VII.

       Realleging and incorporating herein all facts and causes of action heretofore stated,

Plaintiff would show that Defendant has been notified of the claims against it by Plaintiff in

writing more than thirty (30) days prior to the recovery under these causes of action and

demand has been made upon Defendant for the reimbursement of Plaintiff's damages.

Despite this notification, Defendant has failed and refused, and still fails and refuses to

make Plaintiff whole. Therefore, Plaintiff has been compelled to employ the services of the

undersigned attorney to prosecute this action and has agreed to pay him a reasonable fee

for his services necessarily rendered and to be rendered in prosecuting these claims

against Defendant. For such services, Plaintiff requests recovery in at least the sum of

$12,460.31, in accordance with Chapter 38, Texas Civil Practice and Remedies Code.

Plaintiff further requests an additional $5,000.00 in the event an appeals bond is filed in

this matter as a reasonable attorney's fee and an additional $5,000.00 as a reasonable

attorney's fee in the event a Writ of Error is filed with the Texas Supreme Court.

       WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that citation be issued,

that upon legal trial or hearing of this cause judgment be rendered for Plaintiffs as prayed

for, and that Plaintiff's be allowed to recover from Defendant the amount of $37,418.34 for




                                                                                                 Page 8
property damages; reasonable attorneys fees in the amount of $12,460.31; for pre-

judgment interest from the date of the accident to the time of trial; for post-judgment

interest as allowed by law; and for such other and further relief, both general and special,

at law or in equity, to which Plaintiff may show itself justly entitled.

                                              Respectfully submitted,



                                              /s/ Jeffrey S. Reddall
                                              Jeffrey S. Reddall
                                              State Bar No. 16659200
                                              Comerica Bank Building
                                              One Sugar Creek Center Blvd., Suite 925
                                              Sugar Land, Texas 77478
                                              Tel: (281) 242-6010
                                              FAX: (281) 313-6803
                                              E-mail: jeff@reddall-law.com

                                              ATTORNEY FOR PLAINTIFF




                                                                                               Page 9
                                                                                E-FILED
                                                                                TARRANT COUNTY, TEXAS
                                                                                11/18/2014 1:31:41 PM
                                                                                MARY LOUISE GARCIA
                                                                                COUNTY CLERK
                                                                                BY: M.W. B.
                                     No. 2014-001872-3

FIREMAN'S FUND INSURANCE COMPANY §                         IN THE COUNTY COURT
AS SUBROGEE OF UNITED RENTALS, INC. §
                                                    §      AT LAW NUMBER 3 OF
vs.                                                 §
                                                    §
HOFER BUILDERS, INC.                                §      TARRANT COUNTY, TEXAS

                   PLAINTIFFS' MOTION FOR DEFAULT JUDGMENT

       COMES NOW, FIREMAN'S FUND INSURANCE COMPANY AS SUBROGEE OF

UNITED RENTALS, INC., Plaintiff in the above-entitled and numbered cause, (hereinafter

referred to as Movant), and moves for a default judgment against HOFER BUILDERS, INC.,

Defendant, and in support thereof would show as follows:

                                               I.

       On or about May 5, 2014, Defendant was served with citation along with Plaintiff's

Original Petition. Citation along with the Officer's Return were returned to the Court and

have been on file in this matter for the requisite period of time. Defendant has failed to

appear and answer in this matter and wholly made default. Defendant's failure to timely

appear and answer herein has resulted in his admitting liability in this matter.

       Defendant's last known address is contained in the Certificate of Last Known

Address attached hereto as Exhibit A

       The damages in Plaintiff's Original Petition are unliquidated. Therefore, Plaintiff

attaches hereto as Exhibit B attaches an affidavit to prove the amount of damages and the

causal nexus. The Court can award damages based upon affidavits without holding an

evidentiary hearing.

       Plaintiff has incurred attorney's fees in connection with the prosecution of this matter.

Attached hereto as Exhibit C is an affidavit of the undersigned attorney attesting to the




                                                                                                   Page 10
reasonable and necessary attorney's fees incurred by Plaintiff herein.

       WHEREFORE, PREMISES CONSIDERED, Movants pray that:

       1.     the Court set this matter for a hearing or a submission date;

       2.     Movant be granted judgment against;

       3.     Movant be granted such other and further relief, special or general, legal or
              equitable, as may be shown that Movant is justly entitled to receive.

                                           Respectfully submitted,


                                           Isl Jeffrey S. Reddall
                                           Jeffrey S. Reddall
                                           State Bar No. 16659200
                                           Comerica Bank Building
                                           One Sugar Creek Center Blvd ., Suite 925
                                           Sugar Land, Texas 77478
                                           Tel: (281) 242-6010
                                           FAX: (281) 313-6803
                                           E-mail: jeff@reddall-law.com

                                           ATTORNEY FOR MOVANT/PLAINTIFF

                                CERTIFICATE OF SERVICE

         I, Jeffrey S. Reddall, do hereby certify that a true and correct copy of the foregoing
Plaintiff's Motion for Default Judgment was this day been delivered to all parties or their
respective counsel of record by certified mail, return receipt requested .

       SIGNED this 13th day of November, 2014.

                                           Isl Jeffve,y 5. Reold.oJl,




                                                                                                  Page 11
                                   No. 2014-001872-3

FIREMAN'S FUND INSURANCE COMPANY §                     IN THE COUNTY COURT
AS SUBROGEE OF UNITED RENTALS, INC. §
                                                §      AT LAW NUMBER 3 OF
vs.                                             §
                                                §
HOFER BUILDERS, INC.                            §      TARRANT COUNTY, TEXAS

                     CERTIFICATE OF LAST KNOWN ADDRESS

TO THE CLERK OF SAID COURT:

        COMES NOW, Plaintiffs in the above-entitled and numbered cause, and certify that

the last known mailing address for HOFER BUILDERS, INC., Defendant in the above-

entitled and numbered cause, against whom a default judgment has been rendered is as

follows :

                                HOFER BUILDERS, INC.
                                 3909 Huckleberry Dr.
                                Fort Worth, Texas 76137

                                         Respectfully submitted ,


                                         Isl JeffveAJ S. R~
                                         Jeffrey S. Reddall
                                         State Bar No. 16659200
                                         Comerica Bank Building
                                         One Sugar Creek Center Blvd ., Suite 925
                                         Sugarland , Texas77478
                                         Tel:     (281) 242-6010
                                         FAX: (281) 313-6803
                                         E-mail: jeff@reddall-law.com

                                         ATTORNEY FOR PLAINTIFF




                                        EXHIBIT A




                                                                                           Page 12
                                                                      No. 2014-001872-3

FIREMAN'S FUND INSURANCE §                                                 IN THE COUNTY COURT
COMPANY AS SUBROGEE OF §
UNITED RENTALS, INC.     §                                                 AT LAW NUMBER 3 OF
                                                                     §
vs.                                                                  §
                                                                     §
HOFER BUILDERS, INC.                                                 §     TARRANT COUNTY, TEXAS

                           AFFIDAVIT FOR AUTHENTICATION OF BUSINESS RECORDS

STATE OFtltrQ)tJJLl                                     I    }




          c
COUNTY OF3:fto[~ }
                  tb}
                    .BEFOR:: ME,                            the    undersigned authority, personally appeared
"'""'
 :W,,,...........~r_,,\N'-'""'""
                            n..,___      G::o'1f1r-1-,--'
                                 . . t1.......,I.....             who, being by me duly sworn, deposed and said:

1.             "My name is WA (ll~t-.J \i1&f\. I am over 18 years of age, of sound mind,
               capable of making this affidavit, and personally acquainted with the facts
               stated in it.

2.             "I am the person in charge of the records of Fireman's Fund Insurance
               Company. As part of the duties of my position, I am the custodian of
               records for this business.

3.             "The records attached to this affidavit provide an itemized statement of the
               damages sustained by Fireman's Fund Insurance Company as a result of
               the occurrence made the basis of this lawsuit. The attached records are
               kept in the regular course of its business. The memoranda, reports,
               notations, and entries contained in these records were made at or near the
               time of the act, event, condition, opinion or diagnosis recorded, or
               reasonably soon thereafter. It was the regular course of that business for
               an employee or representative of the business with knowledge of the act,
               event, condition, opinion or diagnosis recorded to make tll'e memoranda,
               reports, notations, and entries contained in these records, or to transmit
               information concerning these matters to other employees or representatives
               of the business designated to receive the information for the purpose of
               including it in the records of the business.

4.             "The records attached to this affidavit are exact duplicates of the originals.

5.             "The amount of reasonable and necessary damages sustained by
               Fireman's Fund Insurance Company as a result of the occurrence made the
               basis of this lawsuit is $37,418.34."


                                                                                !A
                                                                               t'/
                                                                    Exhibit   -~-




                                                                                                                   Page 13
                                                                             \




                                     ~'~
                                     AFFIANT


     msCRIBED AND SWORN TO BEFORE ME on the                ~ay of
NJ? f-h ,20 IA ,to certify which witness my hand ~nd official seal.
                                                       I
                                                       (

             RONDA K. WIECHENS
             My Commission Expires
                                                \ Ii
                   May 2, 2016
               St. Charles County
             Commission #12381728
                                                                      I\




                                                                           Page 14
                                                                               JLG Equipment Services, Inc.                                 ESTIMATE
                                                                               441 Weber Lane
      GRCJUND
      SUPP ORT                                                                 Bedford , Pa. 15522
                                                                               Phone: ( 814) 624 - 5800
    SERVICE CENTERS                                                            Fax: ( 814) 624 - 5820

ASSESSMENT DATE:                                                                     3/1/13

Model Number:                                                                      G10 - 55A                        CUSTOMER            UNITED          RENTALS
Serial Number:                                                                    0160013078                                            REVISED

                                                    CUSTOMER REBUILD:             CUSTOMER
                                                              RENTAL:              REPAIR
                                                              RESALE:


                PART NUMBER & NAME OF PART                                        QUANTITY         AVAILABLE          SHORT               DATE          LIST PRICE
91576007S - CUTTER MID BOOM                                                           1                                                                    $9,762.78
91576006S - INNER MID BOOM - replaced                                                 1                                                                   $11,998.65
1001110107- CHAIN REPLACEMENT KIT                                                     1                                                                    $5,500.00
2910980 - WEAR PAD REPLACEMENT KIT                                                    1                                                                    $3,303.03
91513210 - DECAL                                                                      1                                                                        $3.47
91363203 - DECAL                                                                      1                                                                      $499.63
84718959 - HOSE ASSY                                                              2@ 105.21                                                                  $210.42
91166032 - HOSE CARRIER                                                               1                                                                    $1,021.92
91166067 - HOSE CARRIER                                                               1                                                                      $666.63
91161136 - PIN                                                                        1                                                                       $61.23
91161137- PIN                                                                         1                                                                       $52.02
88581149 - RETAINING RING                                                          4 @1.47                                                                     $5.88
3423247 - PIN                                                                         1                                                                      $458.07
2915215 - SHEAVE KIT                                                                  1                                                                       $46.16
91161267 - PIN                                                                    3 @131 .06                                                                 $393.18
91165022 - ROLLER                                                                 5 @323.76                                                                $1,618.80
1001123015 - VALVE                                                                    1                                                                      $268.91
1001123014 - VALVE                                                                    1                                                                      $355.69
7026467 - SEAL KIT                                                                    1                                                                      $359.77
1001103314S - FLY BOOM SECTION                                                        1                                                                   $17,822.18
                                                                                                                                       PARTS              $54,408.42
                                                                                                                                    W /DISCOUNT           $32,917.09
LABOR REQUIRED - 48.5 HRS                                                                                                              LABOR               $4,001 .25
OUTSIDE CHARGE FOR TELE CYL INSPECTION & REBUILD                                                                                         CYL                 $500.00
                                                                                                                                        TOTAL             $37,418.34

    INSPECT FOR DAMAGE - NOTIFY IF ANY DAMAGE FOUND
INSPECT ALL BOOM SECTIONS
INSPECT ALL CYLINDERS
INSPECT CARRIAGE & FORKS
INSPECT FRAME & AXLES
CHECK ALL FUNCTIONS FOR PROPER OPERATION




       Customer agrees that upon its approval ServicePLUS is authorized to perform the work set forth in this Estimate at the prices set forth above.




                                                                                                                                                                 Page 15
Claim Inquiry - By Claim                        LFRI    3/21/13 17:39:32     Inquir e
 History Detail

 Check Ref No          0042690         Check Replaces
 Check Date             2/20/13        Check Amount                   16,635.93
 Check Status          E               Check Accept Amount                  .00
 Check Type                            Check Printed          p
 Check Stop ID                         Check Stop Date         0/00/00
 Check Stop Reason                     Check                  00142737
 Bank                  Al              Check Distribution    M
 Invoice #                             Invoice Date               0/00/00

Mail Address           UNITED RENTALS INC

                       P.O. BOX 4366


                       MODESTO               CA 95352
Payee Name             UNITED RENTALS INC

 In Payment Of         6 77-578994RA

F3=Exit   F12=Cancel




                                                                                        Page 16
Claim Inquiry - By Claim                        LFRI    4/24/13 16:35:46    Inquire
 History Detail

 Check Ref No          0045152         Check Replaces
 Check Date             4/05/13        Check Amount                  10,782.41
 Check Status          E               Check Accept Amount                 .00
 Check Type                            Check Printed         p
 Check Stop ID                         Check Stop Date         0/00/00
 Check Stop Reason                     Check                  00145148
 Bank                  Al              Check Distribution    M
 Invoice #                             Invoice Date              0/00/00

Mail Address           UNITED RENTALS INC

                       P.O. BOX 4366


                       MODESTO               CA 95352
Payee Name             UNITED RENTALS INC

 In Payment Of         677-578994RA

F3=Exit   Fl2=Cancel




                                                                                      Page 17
                                     No. 2014-001872-3

FIREMAN'S FUND INSURANCE COMPANY                 §       IN THE C04JNTY COURT
AS SUBROGEE OF UNITED RENTALS, INC.              §
                                                 §       AT LAW NUMBER 3 OF
vs.                                              §
                                                 §
HOFER BUILDERS, INC.                             §       TARRANT COUNTY, TEXAS

                        AFFIDAVIT FOR ATTORNEY'S FEES


THE STATE OF TEXAS               §
                                 §
COUNTY OF FORT BEND              §

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

Jeffrey S. Reddall , known to me to be a credible person and who, after being by

me first duly sworn, on oath deposed and said:

             "I, Jeffrey S. Reddall, am attorney of record for the Plaintiff in the
      above-entitled and numbered cause. I am over twenty-one (21) years of
      age of sound mind , and never convicted of a crime or offense. I am
      authorized to make this Affidavit, have personal knowledge of the facts
      hereinafter stated and they are all true and correct."

             "I am a duly licensed attorney authorized to practice before all
      Courts of the State of Texas and I am familiar with the customary and
      usual attorney's fees charged in the District, County and Justice Courts of
      Texas ."

             "As counsel in the above-styled and numbered cause, I have
      knowledge as to the reasonable and customary fees charged by attorneys
      in the Houston area for services in cases of the same or similar nature as
      in the above-entitled and styled cause. It is a reasonable and accepted
      practice in Texas , that the minimum fee contract for such legal
      representation should be 33 1/3% of the amount of the Plaintiff's claim .

              "The amount of reasonable attorney's fees in this case which is in
      accordance with local practice is the sum of at least $12,460.31 through
      the trial of this matter. It is also reasonable and customary that the
      necessary attorney's fees in the event of an appeal to the Court of
      Appeals is $5,000.00 , and in the event a writ is filed with the Texas
      Supreme Court is an additional $5,000 .00."
                                  EXHIBIT C




                                                                                      Page 18
                                   JEFFREYS. R;        ALL             . --

                             SWORN . TO   BEFOi       ME,    on this L2_
day of
       SUBt CRIBED
             -<-vk:J
official seal.
               .l "1
                       AND
                              ,24 ,   to certify which witness my hand and




                                   Notary Public in and for
                                   The State of Texas




                                                                              Page 19
                                                                           E-FILED
                                                                           TARRANT COUNTY, TEXAS
                                                                           1/5/2015 3:17:19 PM
                                                                           MARY LOUISE GARCIA
                                                                           COUNTY CLERK
                                                                           BY: M.W. B.


                                        CAUSE NO. 2014-001872-3

    FIREMAN'S FUND INSURANCE                          §           IN THE COUNTY COURT
    COMPANY AS SUBROGEE OF                            §
    UNITED RENTALS, INC.                              §
       Plaintiffs,                                    §
                                                      §
v.                                                    §                   ATLAWN0.3
                                                      §
HOFER BUILDERS, INC.,                                 §
  Defendant.                                          §       TARRANT COUNTY, TEXAS

                                  DEFENDANT'S MOTION FOR NEW TRIAL

       Defendant Hofer Builders, Inc. ("Hofer") respectfully submits this motion for new

trial, and asks the Court to grant it a new trial in the interest of fairness and in

accordance with the law.

       Defendant's Motion is supported by the attached sworn affidavit of Tom Hofer,

which is attached hereto as Exhibit A and is incorporated herein by reference for all

purposes.

                                            I.   Background

       1. This subrogation claim arises from a defective forklift rented by Hofer from

United Rentals, Inc. ("United"). Hofer rented the forklift to use on a commercial

construction project. vVhile using the forklift to move some garbage, the extended arm

of the forklift cracked, causing the boom to collapse.1 United made a claim on its

insurance policy with Fireman's Fund Insurance Company ("Fireman's") for the

damage to the equipment, and Fireman's filed this suit to recover the amounts that it

paid United for the damage to the forklift.


1   See Tom Hofer Aff.   ~   4.


Plaintiffs' Motion for New Trial                                                  Pagel



                                                                                            Page 24
       2. Upon being notified of the lawsuit, Hofer notified its insurance carrier, who

    undertook all communications with counsel for Fireman's. 2 Hofer believed its insurance

carrier would defend the lawsuit on its behalf.3 Hofer' s insurance carrier obtained an

indefinite extension of the answer deadline from Fireman's counsel in order to provide

time to adequately investigate the claim and determine whether it had a duty to defend

Hofer. After investigating, Hofer's insurance carrier determined the loss was not

covered under Hofer' s policy, and refused coverage.

       3. The carrier notified Hofer and Fireman's counsel of its decision to refuse

coverage and advised Hofer that it would have "plenty of time" to seek out counsel to

represent it in the lawsuit.4 Fireman's counsel communicated to Hofer's insurance

carrier on October 6, 2014, after the carrier determined it would not provide a defense

that if Hofer did not file an answer to the lawsuit by October 10, 2014, a Motion for

Default Judgment would be filed. Hofer' s insurance carrier confirmed to Fireman's

counsel on October 7, 2014, that it had relayed the message regarding Hofer's answer

deadline to Hofer, but it did not. 5 Hofer was not aware of the current status of the

litigation and was not informed by anyone that a Motion for Default Judgment had

been filed and set for hearing on November 19, 2014.6 An Order Granting Plaintiffs

Motion for Default Judgment was entered on December 8, 2014.




2 See Tom Hofer Aff. 'II 5.
> See Tom Hofer Aff. 'If 5.
•See Tom Hofer Aff. 'I! 8.
s See Tom Hofer Aff. 'II 9.
•See Tom Hofer Aff. '\i 9.


Plaintiffs' Motion for New Trial                                                    Page2



                                                                                              Page 25
        4. Had Hofer been properly notified by its insurance carrier or Fireman's counsel,

    Hofer would have taken the necessary steps to retain counsel and answer the lawsuit by

    Fireman's deadline.         Hofer believes that none of its acts or omissions caused or

contributed to the alleged damages sustained by United Rentals' forklift, and that the

damage was caused by a product defect in the forklift, i.e. a malfunctioning skid plate

on the forklift boom that permitted the boom to overextend and collapse. Given these

facts, Hofer satisfies the Cmddock elements and the Court must, under Texas law, grant

Hofer a new trial.

                                     II.     Arguments and Authorities

        5. When a defendant does not file an answer because of a mistake or accident, the

default judgment should be set aside and a new trial ordered in any case in which the

defaulting party can satisfy the three elements set forth in Craddock v. Sunshine Bus

Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939): 1) the party's failure to file a response was

not intentional or the result of conscious indifference; 2) the party "sets up" at least one

defense that, if proven, counters the pleading at issue; and 3) the granting of a new trial

will not unfairly prejudice the opposing party. 7

               A. Defendant's failure to respond was not intentional nor the result of
                  conscious indifference.

       6. Under Craddock, when the defaulting party fails to answer in a timely manner

due to accident or mistake and not as the result of an intention not to respond, then,

upon the defaulting party's motion, the court must set aside the resulting judgment and



7   Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939).


Plaintiffs' Motion for New Trial                                                     Page3


                                                                                               Page 26
    grant a new trial.   B   In order to satisfy the first Craddock element, a "defaulting party

    must provide some excuse, but not necessarily a good excuse, for failing to answer in a

    timely manner." 9 The dispositive inquiry is whether the defaulting party intended to

not respond or was consciously indifferent to responding - as opposed to mistakenly or

accidentally not responding.10 "TI1e absence of an intentional failure to answer is the

controlling factor under this analysis." n

       7. Here, Hofer' s failure to answer plainly was not intentional or the result of

conscious indifference. Initially, Hofer believed its insurance company was providing a

defense to the lawsuit Hofers's insurance company dealt directly with counsel for

Fireman's on Hofer' s behalf in this case prior to issuing its reservation of rights letter

and denying coverage of the lawsuit

       8. Fireman's was notified of the insurance carrier's refusal to defend and failed to

notify Hofer of the new answer deadline, its Motion for Default Judgment, or the

hearing scheduled on November 19, 2014. 12 The first time Hofer learned of its answer

deadline, Fireman's Motion, and the hearing was on or about December 12, 2014 when

it received the signed Judgment from the Court. 13 Hofer was very surprised to learn




8 See Craddock, 133 5.W.2d at, 126; State Employees Worker's Compensation Division u. Evans, 889 5.W.2d 266
(Tex. 1994) (Where the Craddock elements are satisfied, the court has no discretion but to set aside the
judgment.).
'Jn tlte Interest of A.P.P., 74 S.W.3d 570, 573 (Tex.App.-Corpus Christi 2002, pet. denied), (citing Norton v.
Martine:, 935 S.W.2d 898, 901 (Tex.App.-San Antonio 1996, no writ); Gotcher v. Bamett, 757 S.W.2d 398,
401(fex.App.-Houston1988, no writ)).
10Craddock133 5.W.2d atl25.
11 /11 the Interest of A.P.P., 74 S.W.3d at 573 (citing Craddock, 133 S.W.2d at 125).
12 See Tom Hofer Aff. ~j/ 7, 9.
13 See Tom Hofer Aff. j/ 10.




Plaintiffs' Motion for New Trial                                                                      Page4



                                                                                                                 Page 27
 that a hearing had been held and that a judgment had been entered.14                            Hofer

 immediately retained the undersigned counsel to file a Motion for New Trial on its

 behalf.1 5

        9. Hofer' s failure to answer was not intentional or the result of conscious

indifference. Hofer believed its answer deadline continued to be extended to allow time

to retain counsel, and had no notice of Fireman's pending Motion or the scheduled

hearing. 16 Had Hofer been aware of its answer deadline, Fireman's Motion for Default

Judgment, or the scheduled hearing date, it would have taken the appropriate steps to

ensure that an answer was filed. Hofer satisfies the first Craddock element.1 7

               B. Defendant has a meritorious defense to Plaintiff's Original Petition

        10. If a party alleges facts that, if true, would constitute a meritorious defense to the

opposition's pleading, then the party has satisfied the second Craddock element. 18 A

meritorious defense is one that, if proven, would cause a different result, but not

necessarily the opposite result. 19         The defaulting party need not submit affidavit

evidence of its meritorious defense, and no contradictory affidavits from the other party

will be considered. 20

       11. Products Liability. Fireman's claims arise out of alleged damage to commercial

construction equipment Hofer rented from United. However, Hofer would show the

14   See Tom Hofer Aff. iiii 10-11.
15   See Tom Hofer Aff. i/ii 11.
"See Tom Hofer Aff. 1!1! 8-9.
17 Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988); Texas Sting, Ltd. v. R. B. Foods, 82 S.W.3d 644, 650

(Tex.App.-San Antonio 2002, pet. denied) (When a party receives no notice of a trial setting, they have
satisfied the first prong of Craddock and need not meet the remaining two).
18 Strackbein v. Pmvitt, 671S.W.2d37, 39 (Tex. 1984); Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966).

19 Liepelt v. Oliveira, 818 S.W.2d 75, 77 (Tex.App. -Corpus Christi 1991, no writ).

20 Estate of Pollack v. McM11rrey, 858 5. W.2d 388, 391 (Tex. 1993).




Plaintiffs' Motion for New Trial                                                                Pages


                                                                                                           Page 28
 equipment was defective when rented from United as the result of a defect in the design

 or manufacturing process. This defect was the only, or, at a minimum, the superseding,

 cause of the equipment failure and resulting damage, not any action of Hofer.

           C. The Court's granting of a new trial will not unfairly prejudice Defendant.

        12. In the final element Defendant must show that the Court's granting of a new

 trial will not unfairly prejudice the Plaintiff. The purpose of this element is to protect

the Plaintiff against the sort of undue delay or injury that would disadvantage him in

presenting the merits of his case at a new trial, such as loss of witnesses or other

valuable evidence.21

        13. The final hearing resulting in entry of a default judgment was a month ago.

There is no risk that witnesses or other evidence would be compromised by virtue of

the Court granting a new trial when so little time has passed. Moreover, there is no

reasonable argument that Fireman's would be prevented from presenting the merits of

its case at trial. Finally, Hofer is prepared to proceed expeditiously to trial. Hofer has

satisfied tl1e third Craddock element.

                                                  III.      Prayer

        FOR THESE REASONS, Defendant, Hofer Builders, Inc. prays that its Motion for

New Trial be granted and that it have such other and further relief to which it may

show itself justly entitled.

                                                         Respectfully submitted,

                                                         THE Cox LAW FIRM, PLLC


21   State Employees Wo1·ker's Compensation DiZ1isio11, 889 5.W.2d at 270.


Plaintiffs' Motion for New Trial                                                    Page6


                                                                                              Page 29
                                          •ya~
                                           EdWa.C0x
                                             State      No. 00793560
                                             Mary R. Torres
                                             State Bar No. 24086084
                                          1300 Norwood Dr., Suite 100
                                          Bedford, TX 76022
                                          Telephone: (817) 860-9200
                                          Facsimile: (817) 860-9205

                                          ATTORNEY FOR PLAINTIFFS


                              CERTIFICATE OF CONFERENCE

     I hereby certify that on December 17, 2014, I contacted Jeffrey S. Reddall, attorney of
record for Plaintiff, by telephone to discuss the merits of this Motion for New Trial with
him. He advised that Plaintiff would be opposed to such motion. Therefore, this matter
is presented to the Court for consideration.




                                   CERTIFICATE OF SERVICE

    The undersigned hereby certifies that a true and correct copy of the above and
foregoing document has been served on the following counsel of record via facsimile on
January 5, 2015.

    Jeffrey S. Reddall
    THE LAW OFFICE OF JEFFREYS. REDDALL
    One Sugar Creek Center Blvd., Suite 925
    Sugar Land, Texas 77478
    Facsimile: (281) 313-6803




Plaintiffs' Motion for New Trial                                                     Page7



                                                                                               Page 30
                                   CAUSE NO. 2014-001872-3

FIREMAN'S FUND INSURANCE                         §             IN THE COUNTY COURT
COMPANY AS SUBROGEE OF                           §
UNITED RENTALS, INC.                             §
   Plaintiffs,                                   §
                                                 §
v.                                               §                        ATLAWN0.3
                                                 §
HOFER BUILDERS, INC.,                            §
  Defendant.                                     §          TARRANT COUNTY, TEXAS

                                 AFFIDAVIT OF TOM HOFER

STATE OF TEXAS              §
                             §
COUNTYOFTARRANT §

     BEFORE ME, the undersigned authority, a Notary Public in and for said county and
state, on this day personally appeared Tom Hofer, being by me first duly sworn upon
his oath, deposed and stated as follows:

    1. "My name is Tom Hofer. I am over 18 years of age, of sound mind, capable of
making this affidavit, and personally acquainted with the facts stated herein. I am fully
competent and able to testify herein. Further, every fact and statement contained in this
affidavit is within my personal knowledge and is true and correct.

    2. I am the President of Hofer Builders, Inc. As such, I am familiar with the
company's operations and bear ultimate responsibility for same. I interacted directly
and indirectly (through a project manager, Randal Harrison and insurance agent, Chad
Woodard) with the parties identified below and am familiar with the parties' dealings
and the events I describe herein.

    3. In 2012, Hofer Builders, Inc. contracted with United Rentals, Inc. for rental of a
forklift to use in a commercial construction project. Pursuant to that rental agreement,
Hofer Builders, Inc. paid United Rentals, Inc. $3,000.00 per month.

    4. While being used to lift a small dumpster of garbage, the boom of the forklift
cracked and broke, causing it, and tl1e load it was lifting, to fall.

    5. After paying its insured's claim for the damage to the forklift, Fireman's Fund
Insurance Company ("Fireman's") filed this lawsuit, which I became aware of in May,

                                                            PLAINTIFF'S
Plaintiffs' Motion for New Trial                      .ll    EXHIBIT               Pages
                                                      i _ ....A_..___
                                                                                            Page 31
2014. Believing the damages claimed to be covered under the insurance policy held by
Hofer Builders, Inc., I promptly notified my insurance carrier of the suit.

           6. Joel Voelkner was assigned as the adjuster on the claim, and undertook all direct
communications with counsel for Fireman's.

    7. After conducting an investigation into the claim, Hofer Builders, Inc.' s insurance
provider notified Fireman's and Hofer Builders, Inc. in September, 2014 that its
insurance policy did not afford coverage for the claim, and therefore a defense to the
lawsuit would not be provided.

     8. Mr. Voelkner advised me that Hofer Builders, Inc. would have "plenty of time"
to retain counsel to defend it in the lawsuit because he had obtained an extension of the
answer deadline, and there was no answer deadline in place.

     9. Unbeknownst to me, Fireman's attorney, Jeff Reddall, filed a Motion for Default
Judgment on or about November 13, 2014. Mr. Reddall never contacted me or informed
me of this motion and neither did anyone from his office. Furthermore, I was not aware
that the Court set Plaintiff's Motion for Default Judgment for hearing on November 19,
2014. Mr. Reddall did not contact me or have anyone from his office contact me with
this information. In fact I received no communication from Mr. Reddall or his office
after being notified Hofer Builders, Inc's insurance company would no longer be
involved in the case.

          10. The first time I learned of Plaintiff's Motion for Default Judgment and the
hearing held on November 19, 2014 was when I received a letter from the Court
enclosing the Judgment. I received the Court's letter on or about December 12, 2014.

   11. I was very surprised by the Judgment and I immediately contacted Edward S.
Cox of The Cox Law Firm, PLLC to represent Hofer Builders, Inc. in this matter."



                                                       ~·
          Further affiant sayeth not.


                                                      TOillHer


         SUBSCRIBED AND SWORN TO BEFORE ME               this~
                                                              -   day of January, 2015.


      A._'$,~ :111~
            11
                         BRANDI GALE HOFER
; ·;i:"'.~.·
_,:
     ;,., ·~ti.\
            .!f.$     Notary Publlc. State of Texas
                        My Commission Expires
    'i''V.:w'i'              May 01. 2011                    in and for the State of Texas


Plaintiffs' Motion for New Trial                                                          Page9


                                                                                                  Page 32
                                                                             E-FILED
                                                                             TARRANT COUNTY, TEXAS
                                                                             1/14/2015 11:25:24 AM
                                                                             MARY LOUISE GARCIA
                                                                             COUNTY CLERK
                                                                             BY: M.W. B.
                                    No. 2014-001872-3

FIREMAN'S FUND INSURANCE COMPANY §                       IN THE COUNTY COURT
AS SUBROGEE OF UNITED RENTALS, INC. §
                                                   §     AT LAW NUMBER 3 OF
vs.                                                §
                                                   §
HOFER BUILDERS, INC.                               §     TARRANT COUNTY, TEXAS

       PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTIN FOR NEW TRIAL

TO THE HONORABLE JUDGE OF SAID COURT:

       COMES NOW, FIREMAN'S FUND INSURANCE COMPANY AS SUBROGEE OF

UNITEDD RENTAL'S, INC., Plaintiff herein, and files this its response to Defendant;s

Motion for New Trial, and in support thereof would show as follows:

                                              I.

                                    Procedural History

       Plaintiff filed suit on April 15, 2014, and requested citation and service thereon .

Defendant was served on May 5, 2014. As set forth in the affidavit of Jeffrey S. Reddall,

attached hereto as Exhibit A and incorporated herein by reference as though fully set

forth verbatim , on May 12, 2014, Plaintiff's counsel and Defendant's insurance adjuster,

Joel Voelkner, entered into an agreement to extend Defendant's answer date up to and

including June 26, 2014, in order to give him time to investigate the claim. On June 27,

2014, that deadline was extended up to and including July 28, 2014 . On October 1, 2014,

Plaintiff's counsel called Defendant's agent to inquire as to the status of his investigation.

Mr. Voelkner was not available and counsel left him a voice mail message advising him

that counsel would either need to move forward with a default judgment against

Defendant, or be contacted by an attorney on its behalf. On October 6, 2014, counsel

followed up that message with an e-mail to Mr. Voelkner setting a deadline for Defendant




                                                                                                 Page 33
to file its Answer by 5:00 p.m. on Friday, October 10, 2014 , and further advising that a

motion for default judgment would be filed if no Answer was filed by then. On October 7,

2014, Mr. Voelkner sent counsel an e-mail advising that he had made the Defendant

aware of the deadline. On October 13, 2014, Mr. Voelkner sent counsel a second e-mail

advising that on October 7, 2014, he made the Defendant aware of the deadline for filing

its Answer by this deadline.

       Plaintiff filed its Motion for Default Judgment on November 19, 2014.

                                              11.

                                Argument and Authorities

       When a default judgment is rendered against a defendant who had notice of the

suit but did not file an answer to the suit the defendant's motion for new trial should allege

the three elements set forth in Craddock v. Sunshine Bus Lines, Inc. , 133 S. W2d 124

(Tex. 1939):

   1. Mistake or Accident - The defendant must show that its failure to file an answer

       was not intentional or the result of conscious indifference but was due to mistake

       or accident. The critical question is why the defendant did not appear. Sutherland

       v. Spencer, 376 S. W2d 752 (Tex. 2012) . In its motion and supporting affidavit,

       Defendant claims it was not informed of the deadline imposed by Plaintiff's counsel

       for the filing of its Answer.     This claim , however, is refuted by the e-mail

       correspondence between Plaintiff's counsel and Mr. Voelkner.                 However,

       assuming arguendo, that Defendant did not receive notice of said deadline from

       Mr. Voelkner, reliance upon an insurance agent to file an answer does not satisfy

       the test (of mistake or accident) . Holt Atherton, Indus. V. Heine, 835 S. W.2d 80




                                                                                                 Page 34
   (Tex. 1992). Defendant in its motion has failed to provide any proof that its agent,

   Mr. Volekner, was not guilty of conscious indifference. Heine, 835 S. W2d@ 83.

   Defendant merely alleges in its motion and supporting affidavit that it believed the

   answer deadline continued to be extended to allow time for it to retain counsel.

   However, an affidavit containing only general statements without dates and other

   verifying information does not disprove its conscious indifference. Liberty Mut. Fire

   Ins. V. Ybarra, 751 S.W2d 615, 617-618 (Tex.App. - El Paso 1988, no writ);

   Sheraton Homes, Inc. v Shipley, 137 S.W.3d 379, 382 (Tex.App. - Dallas 2004,

   no pet.). Defendant has failed to sustain its burden to prove its failure to file an

   answer in this suit was not due to conscious indifference.

2. Meritorious Defense - A Defendant must set up a meritorious defense in its

   motion for new trial. A meritorious defense is one that, if proven , would cause a

   different result at retrial. Titan lndem. Co. v. Old S. Ins. Grp. , 221 S. W3d 703, 711

   (Tex.App. - San Antonio 206, no pet.) . To set up a meritorious defense, the

   defendant must allege facts, supported by affidavits or other evidence, that would

   constitute a defense to the plaintiff's cause of action.   Dolgencorp v. Lerma, 288

   S. W.3d 922, 925 (Tex. 2009) . In its motion for new trial Defendant alleges that a

   product defect in the equipment it rented from Plaintiff's insured was the sole, or

   superseding cause, ·of the loss made the basis of Plaintiff's claims. The affidavit

   of Tom Hofer attached to Defendant's motion, however, fails to provide ariy

   evidence supporting this allegation.     Defendant has further provided no other

  evidence in support of its alleged meritorious defense of a product defect.

  Additionally, Plaintiff's cause of action , in part, was based upon a rental agreement




                                                                                             Page 35
       entered into between Defendant and Plaintiff's insured. That agreement provided

       in pertinent part that Defendant "shall be liable for all damages to or loss of the

       Equipment". Defendant's allegation of a product defect being the cause of the loss

       is moot since Defendant is responsible for the loss under the lease agreement.

       Defendant has failed to meet its burden of proof of a meritorious defense.

   3. Reimbursement - Defendant's motion fails to set forth any statement that it is

      willing to reimburse Plaintiff for all reasonable expenses incurred in getting the

       default. Titan lndem., 221 S. W3d@ 712. As such, Defendant is not entitled to a

       new trial.

                                           111.

                                      Conclusion

       WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendant's

motion for new trial be denied .

                                         Respectfully submitted,

                                         /s/ Jeffrey S. Reddall
                                         Jeffrey S. Reddall
                                         State Bar No. 16659200
                                         Comerica Bank Building
                                         One Sugar Creek Center Blvd., Suite 925
                                         Sugar Land, Texas 77478
                                         Tel:    (281) 242-6010
                                         FAX: (281) 313-6803
                                         E-mail: jeff@reddall-law.com

                                         ATTORNEY FOR MOVANT/PLAINTIFF




                                                                                             Page 36
                               CERTIFICATE OF SERVICE

        I, Jeffrey S. Reddall, do hereby certify that a true and correct copy of the foregoing
Plaintiffs Motion for Default Judgment was this day been delivered to all parties or their
respective counsel of record by certified mail, return receipt requested.

       SIGNED this 14th day of January, 2015.

                                           /s/ Jeffre,y S. Red-oLo..U,




                                                                                                 Page 37
                                      No. 2014-001872-3

FIREMAN'S FUND INSURANCE COMPANY §                           IN THE COUNTY COURT
AS SUBROGEE OF UNITED RENTALS, INC. §
                                                     §       AT LAW NUMBER 3 OF
vs.                                                  §
                                                     §
HOFER BUILDERS, INC.                                 §       TARRANT COUNTY, TEXAS

             AFFIDAVIT FOR AUTHENTICATION OF BUSINESS RECORDS

STATE OF TEXAS                }
                              }
COUNTY OF FORT BEND }

      BEFORE ME, the undersigned authority, a Notary Public in and for the state of
Texas, on this day personally appeared Jeffrey S. Reddall, who being by me duly sworn,
upon his oath deposes and says:

        "My name is Jeffrey S. Reddall. I am over the age of 18 years, of sound mind, and
fully competent to testify as to the matters stated herein. I am the attorney for Plaintiff in this
case, and I have personal knowledge of every statement herein made, and I am fully
competent to testify as to the matters stated herein. Every fact and statement contained
herein is within my personal knowledge and is true and correct.

         On April 15, 2014, I filed Plaintiff's Original Petition in this cause and requested
citation and service thereon. Defendant was served on May 5, 2014. On May 12, 2014,
I entered into an agreement with Defendant's insurance adjuster, Joel Voelkner,
extending Defendant's answer date up to and including June 26, 2014, in order to give
him time to investigate the claim . On June 27, 2014, that deadline was extended up to
and including July 28, 2014 . On October 1, 2014, I called Defendant's agent to inquire
as to the status of his investigation . Mr. Voelkner was not available and I left him a voice
mail message advising him that I would either need to move forward with a default
judgment against Defendant, or be contacted by an attorney on its behalf. On October 6,
2014, I followed up that message with an e-mail to Mr. Voelkner setting a deadline for
Defendant to file its Answer by 5:00 p.m . on Friday, October 10, 2014, and further advising
that a motion for default judgment would be filed if no Answer was filed by then . On
October 7, 2014, Mr. Voelkner sent me an e-mail advising that he had made the
Defendant aware of the deadline. On October 13, 2014, Mr. Voelkner sent me a second
e-mail advising that on October 7, 2014, he made the Defendant aware of the deadline
for filing its Answer by this deadline.

        Defendant failed to file its Answer by the deadline set. On November 18, 2014, I
filed Plaintiff's Motion for Default Judgment.

       The records attached to this affidavit contain the e-mail correspondence between me



                                         Exhibit   _A_
                                                                                                      Page 38
and Joel Voelkner relating to Defendant's Answer. The attached records are kept in the
regular course of my business. The memoranda, reports, notations, and entries contained
in these records were made at or near the time of the act, event, condition , opinion or
diagnosis recorded, or reasonabl~ soon thereafte_r. It was_ the regul_w course of my ?ysiness
for an employee or representative of the business with knowledge of the act, event,
condition, opinion or diagnosis recorded to make the memoran6J, reportsy r:i6tations, and
entries contained in these records, or to transmit information /o~cerningAhese matters to
other employees or representatives of the business designate1 to receive the information
for the purpose of including it in the records of the business. /

       Further, Affiant sayeth not.                        I/
                                                           I           /,

                                                                       b
                                          AFFIANT
                                                               i
                                                                   J
                                                           ;

                                                          I
         SUBSCRIBED AND SWORN TO BEFORE ME dn the                      of   /3'~ay
       p.-"1
:Ju/;1 0         ,
                2 or~ , to certify which witness my f~nd and official seal.


                                             7fi1Dtic ff_,724~
                                          Notary Public in and for
                                          The State of Texas                             /
                                          My Commission Expires:               ~ b /~0/6
                                                                                 (   I




                                                                                                Page 39
Jeff Reddall

From:                               Voelkner, Joel <Joel.Voelkner@yorkrsg.com>
Sent:                               Monday, October 13, 2014 2:23 PM
To:                                 Jeff Reddall
Subject:                            RE: Your Claim No. ESS-1666A2; My Client: FFIC a/s/o United rentals



Jeff,

Thanks. I made the client aware on Tuesday, the day after you sent this.

Regards,

Joel Voelkner
General Adjuster
York SLA
(469) 791-2338

No representative of the Specialized Loss Adjusting Division of York Risk Services Group, Inc. ("York"), or any consultant
retained on behalf of the insurer(s) working with "York", has any authority either to bind the insurer(s) to coverage, or
to interpret, waive, or alter any of the terms, conditions, or limitations of the policy. The insurer (s) reserves the right to
make all decisions concerning coverage . For the avoidance of doubt, nothing that York communicates to you with
respect to this matter constitutes any decision of any kind with respect to any coverage of any kind or an interpretation,
waiver or alteration of any policy term, condition or limitation of any insurance policy.


From: Jeff Reddall [mailto:jeff@reddall-law.com]
Sent: Monday, October 06, 2014 6:22 PM
To: Voelkner, Joel
Subject: RE: Your Claim No. ESS-1666A2; My Client: FFIC a/s/o United rentals

Joel: It is my understanding that you have concluded that there is no coverage under your insured's policy for this
loss. As such, I will need to proceed with the litigation against your insured. In our last conversation you indicted you
were going to advise your insured of your decision and its need to defend itself in the litigation.

As you know, we have has several agreements as to the extension of th~Answer date for your insured . The date under
the last extension has passed . Your insured is curren~y in default.

Please make certain that your insured is aware of it~ .Status in the litigation. I will be proceeding with the filing of a
motion for default judgment if no Answer is filed o~ its behalf by 5:00 p.m. on Friday October 10, 2014.

Should you have any questions please do not hesitate to call me.

Thanks, Jeff.




LAW OFFICE OF JEFFREYS. REDDALL
Comerica Bank Building
One Sugar Creek Center Blvd., Suite 925
Sugar Land, Texas 77478

                                                               1



                                                                                                                             Page 40
Tel : (281) 242-6010
Fax: (281) 313-6803
E-mail: jeff@reddall-law.com

Confidentiality Notice: The information contained in this email and any attachments is intended only for the recipient[s]
listed above and may be privileged and confidential. Any dissemination, copying, or use of or reliance upon such
information by or to anyone other than the recipient[s] listed above is prohibited. If you have received this message in
error, please notify the sender immediately at the email address above and destroy any and all copies of this message.


From: Jeff Reddall [mailto :jeff@reddall-law.com]
Sent: Friday, June 27, 2014 10:17 AM
To: 'Voe Ikner, Joel'
Subject: RE: You r Claim No. ESS-1666A2; My Client : FFIC a/s/o United rentals

Joel : This will serve as acknowledgement of our agreement to extend the current deadline for an answer to be filed on
behalf of your insured in this matter up to and including July 28, 2014 in order to give us additional time to attempt to
resolve this. Please acknowledge your agreement herewith by responding to this e-mail.

Also, would it be possible to get a copy of the policy exclusion from you? It probably will be helpful in trying to get this
settled .

Thanks Jeff.



LAW OFFICE OF JEFFREYS. REDDALL
Comerica Bank Building
One Sugar Creek Center Blvd., Suite 925
Sugar Land, Texas 77478
Tel: (281) 242-6010
Fax: (281) 313-6803
E-mail: jeff@reddall-law.com

Confidentiality Notice: The information contained in this email and any attachments is intended only for the recipient[s]
listed above and may be privileged and confidential. Any dissemination, copying, or use of or reliance upon such
information by or to anyone other than the recipient[s] listed above is prohibited. If you have rece ived this message in
error, please notify the sender immediately at the email address above and destroy any and all copies of this message .


From: Voelkner, Joel [mailto:Joel.Voelkner@yorkrsg.com]
Sent: Monday, May 12, 2014 4:35 PM
To: Jeff Reddall
Subject: RE: Your Claim No . ESS-1666A2; My Client: FFIC a/s/o United rentals

Jeff,

Thank you for returning my call and offering the extended t ime period in this matter. I look forward to receiving the
other documentation you can provide in this matter. I will communicate the new date to the insurance carrier.

Kind regards,

Joel Voelkner
General Adjuster
                                                              2



                                                                                                                          Page 41
York SLA
(469) 791-2338

No representative of the Specialized Loss Adjusting Division of York Risk Services Group, Inc. ("York"), or any consultant
retained on behalf of the insurer(s) working with "York", has any authority either to bind the insurer(s) to coverage, or
to inte rpret, waive, or alter any of the terms, conditions, or limitations of the policy. The insurer (s) reserves the right to
make all decisions concerning coverage. Fo r the avoidance of doubt, nothing that York communicates to you with
respect to this matter constitutes any decision of any kind with respect to any coverage of any kind or an interpretation,
waiver or alteration of any policy term, condition or limitation of any insurance policy.


From: Jeff Reddall [mailto:jeff@reddall-law.com]
Sent: Monday, May 12, 2014 4:29 PM
To: Voelkner, Joel
Subject: Your Claim No. ESS-1666A2; My Client: FFIC a/s/o United rentals

Joel: This will confirm our agreement granting a 30 day extension for your insured to file an answer in the pending
lawsuit in this matter. According to the clerk's records your insured was served on May 5, 2014. That would make the
current answer date May 27, 2014. Under our agreement the new answer date will be June 26, 2014.

Please acknowledge your acceptance of this agreement by responding to this e-mail.

Thanks, Jeff.

LAW OFFICE OF JEFFREY·S. REDDALL
Comerica Bank Building
One Sugar Creek Center Blvd., Suite 925
Sugarland,Texas77478
Tel: {281) 242-6010
Fax: {281) 313-6803
E-mail: jeff@reddall-law.com

Confidentiality Notice: The information contained in this email and any attachments is intended only for the recipient[s]
listed above and may be privileged and confidential. Any dissemination, copying, or use of or reliance upon such
information by or to anyone other than the recipient[s] listed above is prohibited . If you have received this message in
error, please notify the sender immediately at the email address above and destroy any and all copies of this message.




                                                               3



                                                                                                                             Page 42
Jeff Reddall

From:                               Voelkner, Joel <Joel.Voelkner@yorkrsg.com>
Sent:                               Tuesday, October 7, 2014 9:43 AM
To:                                 Jeff Reddall
Subject:                            RE: Your Claim No. ESS-1666A2; My Client: FFIC a/s/o United rentals



Jeff,

Appreciate the email and your flexibility in this matter. I've forwarded on to the client for their review.

Kind regards,

Joel Voelkner
General Adjuster
York SLA
(469) 791-2338

No representative of the Specialized Loss Adjusting Division of York Risk Services Group, Inc. ("York"), or any consultant
retained on behalf of the insurer(s) working with "York", has any authority either to bind the insurer(s) to coverage, or
to interpret, waive, or alter any of the terms, conditions, or limitations of the policy. The insurer (s) reserves the right to
make all decisions concerning coverage. For the avoidance of doubt, nothing that York communicates to you with
respect to this matter constitutes any decision of any kind with respect to any coverage of any kind or an interpretation,
waiver or alteration of any policy term, condition or limitation of any insurance policy.


From: Jeff Reddall [mailto:jeff@reddall-law.com]
Sent: Monday, October 06, 2014 6:22 PM
To: Voelkner, Joel
Subject: RE: Your Claim No. ESS-1666A2; My Client: FFIC a/s/o United rentals

Joel: It is my understanding that you have concluded that there is no coverage under your insured's policy for this
loss. As such, I will need to proceed with the litigation against your insured. In our last conversation you indicted you
were going to advise your insured of your decision and its need to defend itself in the litigation.

As you know, we have has several agreements as to the extension of the Answer date for your insured. The date under
the last extension has passed. Your insured is currently in default.

Please make certain that your insured is aware of its status in the litigation. I will be proceeding with the filing of a
motion for default judgment if no Answer is filed on its behalf by 5:00 p.m. on Friday October 10, 2014.

Should you have any questions please do not hesitate to call me.

Thanks, Jeff.




LAW OFFICE OF JEFFREYS. REDDALL
Comerica Bank Building
One Sugar Creek Center Blvd., Suite 925
Sugar Land, Texas 77478

                                                               1



                                                                                                                            Page 43
Tel: (281} 242-6010
Fax: (281} 313-6803
E-mail: jeff@reddall-law.com

Confidentiality Notice: The information contained in this email and any attachments is intended only for the recipient[s]
listed above and may be privileged and confidential. Any dissemination, copying, or use of or reliance upon such
information by or to anyone other than the recipient[s] listed above is prohibited . If you have received this message in
error, please notify the sender immediately at the email address above and destroy any and all copies of this message.


From: Jeff Reddall [mailto:jeff@reddall-law.com]
Sent: Friday, June 27, 201410:17 AM
To: 'Voelkner, Joel'
Subject: RE : Your Claim No. ESS-1666A2; My Client: FFIC a/s/o United rentals

Joel: This will serve as acknowledgement of our agreement to extend the current deadline for an answer to be filed on
behalf of your insured in this matter up to and including July 28, 2014 in order to give us additional time to attempt to
resolve this . Please acknowledge your agreement herewith by responding to this e-mail.

Also, would it be possible to get a copy of the policy exclusion from you? It probably will be helpful in trying to get this
settled.

Thanks Jeff.



LAW OFFICE OF JEFFREYS. REDDALL
Comerica Bank Building
One Sugar Creek Center Blvd ., Suite 925
Sugarland,Texas77478
Tel : (281} 242-6010
Fax: (281} 313-6803
E-mail: jeff@reddall-law.com

Confidentiality Notice: The information contained in this email and any attachments is intended only for the recipient[s]
listed above and may be privileged and confidential. Any dissemination, copying, or use of or reliance upon such
information by or to anyone other than the recipient[s] listed above is prohibited . If you have received this message in
error, please notify the sender immediately at the email address above and destroy any and all copies of this message .


From: Voelkner, Joel [mailto:Joel.Voelkner@yorkrsg .com]
Sent: Monday, May 12, 2014 4:35 PM
To: Jeff Reddall
Subject: RE : Your Claim No. ESS-1666A2; My Client: FFIC a/s/o United rentals

Jeff,

Thank you for returning my call and offering the extended time period in this matter. I look forward to receiving the
other documentation you can provide in this matter. I will communicate the new date to the insurance carrier.

Kind regards,

Joel Voelkner
General Adjuster
                                                              2



                                                                                                                         Page 44
York SLA
(469) 791-2338

No representative of the Specialized Loss Adjusting Division of York Risk Services Group, Inc. ("York"), or any consultant
retained on behalfof the insurer(s) working with "York" , has any authority either to bind the insurer(s) to coverage, or
to interpret, waive, or alter any of the terms, conditions, or limitations of the policy. The insurer (s) reserves the right to
make all decisions concerning coverage. For the avoidance of doubt, nothing that York communicates to you with
respect to this matter constitutes any decision of any kind with respect to any coverage of any kind or an interpretation,
waiver or alteration of any policy term, condition or limitation of any insurance policy.


From: Jeff Reddall [mailto:jeff@reddall-law.com]
Sent: Monday, May 12, 2014 4:29 PM
To: Voelkner, Joel
Subject: Your Claim No. ESS-1666A2; My Client: FFIC a/s/o United rentals

Joel: This will confirm our agreement granting a 30 day extension for your insured to file an answer in the pending
lawsuit in this matter. According to the clerk's records your insured was served on May 5, 2014. That would make the
current answer date May 27, 2014. Under our agreement the new answer date will be June 26, 2014.

Please acknowledge your acceptance of this agreement by responding to this e-mail.

Thanks, Jeff.

LAW OFFICE OF JEFFREYS. REDDALL
Comerica Bank Building
One Sugar Creek Center Blvd., Suite 925
Sugarland,Texas77478
Tel: (281} 242-6010
Fax: (281) 313-6803
E-mail: jeff@reddall-law.com

Confidentiality Notice: The information contained in this email and any attachments is intended only for the recipient[s]
listed above and may be privileged and confidential. Any dissemination, copying, or use of or reliance upon such
information by or to anyone other than the recipient[s] listed above is prohibited. If you have received this message _in
error, please notify the sender immediately at the email address above and destroy any and all copies of this message.




                                                               3



                                                                                                                          Page 45
                                       Motion For New Trial        6
                                          February 10, 2015



1    that where you have a registered agent that's been served

2    with process, you must show that that registered agent's

3    failure was a mistake or accident rather than intentional

4    or consciously indifferent.

5                    And Mr. Voelkner is not the registered

6    agent of Hofer Builders, he is simply the insurance agent.

7    And we believe that the affidavit of Mr. Hofer establishes

8    his mistake and belief about the extension of time.

9                    THE COURT:   Ms. Lobes?

10                   MS. LOBES:   Your Honor, I mean, our

11   position in a nutshell is Mr. Hofer's company, they were

12   on notice as of September of 2014.    And in his own

13   affidavit in paragraph seven, there is no coverage for

14   this claim from the insurance policy.     No funds will be

15   provided after that notice.

16                   Another month went by and that is when the

17   e-mail exchanges occurred between Mr. Reddall, as well as

18   Mr. Voelkner.   And after that period of time, another

19   month passed before a final motion for default judgment

20   was received.   Hofer Builders had two months to diligently

21   search for an attorney or file an answer with the Court,

22   or even just reach out to Mr. Reddall, which nothing was

23   ever done.

24                   MR. COX:   And the distinction in what

25   counsel relies upon, paragraph seven of the affidavit, is


                      Shari J. Steen, CSR, RMR
            Official Reporter, County Court at Law No. 3
                                      Motion For New Trial          7
                                         February 10, 2015



1    that while my client acknowledges receiving a coverage

2    determination from his carrier, he specifically states

3    that "Mr. Voelkner advised him," in paragraph eight of his

4    affidavit, "that Hofer Builders, subsequent to that

5    coverage denial letter in September, would have plenty of

6    time to obtain counsel to defend it.    And Mr. Voelkner

7    obtained an extension of the answer deadline -- that no

8    answer deadline was then in place."

9                   That extension is corroborated by the

10   multiple extensions that are evidenced by the affidavit of

11   Mr. Reddall between he and Mr. Voelkner.    We didn't have a

12   case where Mr. Reddall is saying, "I never talked to any

13   insurance agent.   I don't know what you are talking

14   about."

15                  Clearly, there were conversations regarding

16   an extension of which my client testifies under oath that

17   he was advised that he had plenty of time and there was

18   not an answer deadline that had been set.    And we believe

19   it is upon this mistaken belief that Hofer's failed to

20   timely answer -- to answer the lawsuit and defend itself

21   here.

22                  MS. LOBES:   The initial deadline was July

23   of 2014.   July 28th to be exact.   Nothing was done

24   between July and until the denial letter in September of

25   2014.   After that deadline, Mr. Reddall afforded until


                       Shari J. Steen, CSR, RMR
             Official Reporter, County Court at Law No. 3
                                      Motion For New Trial        8
                                         February 10, 2015



1    October 10th of 2013 for an answer to be filed, and

2    again, nothing was ever filed or reached out to counsel to

3    file another extension.

4                   Saying he had plenty of time could be

5    forever.   And for all Mr. Reddall knew, the Court could

6    place it on the dismissal docket for being non-processed

7    in the amount of time.

8                   MR. COX:   It's evident from the fact that

9    the citation was served upon my client when Mr. Reddall

10   was well aware of the address at which to give my client

11   notice.

12                  The affidavit of Mr. Reddall is void of any

13   documentation or evidence indicating that he made any

14   attempt whatsoever after the Friday, October 10th

15   deadline to advise Hofer Builders in writing that it was

16   obliged to file an answer and would not be given any

17   further extensions of time.

18                  Nor is there any e-mail within those

19   attached to Mr. Reddall's affidavit that provide any

20   evidence that my client had any knowledge of the

21   communications that had transpired directly between

22   Mr. Reddall and Mr. Voelkner.

23                  THE COURT:   Well, the difficulty I've got

24   is your client did not file an answer based on

25   representations of an insurance agent.   An insurance


                      Shari J. Steen, CSR, RMR
            Official Reporter, County Court at Law No. 3
                                       Motion For New Trial       9
                                          February 10, 2015



1    adjuster, correct?

2                   MR. COX:   Yes.   And the representations

3    that the insurance adjuster had been able to get several

4    extensions of the answer deadline.    And that is why my

5    client was under the reasonable belief that he had, in

6    fact, obtained an indefinite extension and had plenty of

7    time to get defense counsel to appear and file an answer.

8                   THE COURT:   So he didn't go to a lawyer.

9    He sent it to his insurance company.    His insurance

10   company looked at it, called somebody, got in touch with

11   Mr. Reddall.   And --

12                  MR. COX:   He communicated for several

13   months, Your Honor.

14                  THE COURT:   Right.

15                  MR. COX:   Between May and October.   And

16   during that time, my client was advised of the extensions

17   that had been obtained.   And based on the conversations

18   with Mr. Voelkner, that he had an extended period of time

19   in which to file an answer and there was not a deadline

20   that had been set or agreed to.

21                  THE COURT:   So where is your --

22   Mr. Voelkner works for York, specialized loss adjusting,

23   and he's taken care of this matter.    And, apparently,

24   based on your testimony, didn't tell Mr. Hofer, "Oh, not

25   only are we denying coverage, you've got plenty of time to


                      Shari J. Steen, CSR, RMR
            Official Reporter, County Court at Law No. 3
                                       Motion For New Trial      13
                                          February 10, 2015



1    paragraph on the bottom right of that page and onto the

2    next page.

3                   The -- the defendant contacted counsel and

4    was advised that if the documentation was delivered to the

5    attorney's office that the attorney would undertake a

6    defense.   There was a communication with somebody in his

7    office -- there was a miscommunication, and papers were

8    not actually gathered and delivered.    The defendant was

9    under the mistaken belief that the papers had actually

10   been delivered to the attorney and that the defense was

11   being mounted on his behalf.

12                  And under those circumstances, the Court

13   found that evidence to be sufficient to rise to the level

14   of evidencing a mistake rather than conscious indifference

15   and granted the motion for new trial in that case.

16                  THE COURT:    And I think that is because

17   that is an entirely reasonable thing to do is forward the

18   papers to your attorney.

19                  MR. COX:    Well, the fact is they had not

20   been forwarded to the lawyer.

21                  THE COURT:    Right.   Right.   But he was

22   operating under the belief that he forwarded them to a

23   lawyer.

24                  Where in this case, what we have is a

25   fellow that gave his to an insurance adjuster and relied


                      Shari J. Steen, CSR, RMR
            Official Reporter, County Court at Law No. 3
                                     Motion For New Trial          14
                                        February 10, 2015



1    on an adjuster, who may or may not be an attorney, may or

2    may not be responsible for the unauthorized practice of

3    law in making extensions with Mr. Reddall.    He may or may

4    not have created a liability for York Adjusting Company.

5                  MR. COX:   And just as in Strackbein, Your

6    Honor, where the defendant had the mistaken belief the

7    papers had actually left his office and gone to the

8    attorney for the defense to be provided.

9                  In this case, my client's mistaken belief

10   that there had been an indefinite extension of the answer

11   and no deadline was specifically stated in his affidavit

12   for him to file an answer, and that is why the default

13   judgment was rendered in this case prior to him filing an

14   answer.

15                 And that is why we believe that this is not

16   a case of conscious indifference, but rather a mistaken

17   belief that in fact an indefinite extension of time had

18   been granted by counsel for the defendant.

19                 THE COURT:   Well, so why didn't Mr. Hofer

20   contact counsel for the defendant and say, "I want to make

21   sure that I have an indefinite extension.    I need to

22   answer this now that my insurance company notified me the

23   month before that they are not going to cover me"?

24                 MR. COX:   That is not the course of conduct

25   between Mr. Reddall and the insurance adjuster.   And the


                      Shari J. Steen, CSR, RMR
            Official Reporter, County Court at Law No. 3
                                       Motion For New Trial        15
                                          February 10, 2015



1    communication solely and directly between those parties

2    had been sufficient to obtain multiple extensions of the

3    answer deadline beyond -- up until mid October when

4    Mr. Reddall finally decided, look, you know, enough is

5    enough.   I need to have an answer filed.

6                   At that point, the agreements that he had

7    reached with Mr. Voelkner were not -- the termination of

8    that extension was in no way, shape or form communicated

9    to my client, and my client had relied upon those

10   communications between those two parties.

11                  THE COURT:    What authority did Mr. Voelkner

12   have to act -- to act on behalf of Mr. Hofer?

13                  MR. COX:   I believe that if we look at

14   agency, this would be a case of apparent or implied

15   authority to negotiate and extend the answer deadline.

16                  And my client reasonably believed that

17   Mr. Voelkner had obtained an indefinite extension and was

18   under that mistaken belief at the time that the Court

19   rendered its default judgment.

20                  THE COURT:    And what was Mr. Voelkner's bar

21   number?

22                  MR. COX:   I do not understand Mr. Voelkner

23   to be a licensed attorney.    And as my client swears to in

24   his affidavit, he understood Mr. Voelkner had been

25   assigned to this claim that Mr. Hofer tendered to his


                      Shari J. Steen, CSR, RMR
            Official Reporter, County Court at Law No. 3
                                        Motion For New Trial       16
                                           February 10, 2015



1    insurance carrier, that insurance carrier in its practices

2    had reached out to plaintiff's counsel and communicated

3    and obtained the extension via e-mail.

4                    And I don't see anything where Mr. Voelkner

5    represents that he is a licensed attorney; although, I do

6    not know one way or the other whether or not he is a

7    lawyer.

8                    THE COURT:    So how does he have agency?

9    You are saying if I get sued and my neighbor says, "Oh, I

10   will take care of it for you," and I hand it to my

11   neighbor.   And then three months later my neighbor says,

12   "I am in over my head.     I have too much to do, but I got

13   an extension for you," you don't have to answer the

14   lawsuit?

15                   MR. COX:    The distinction between your

16   situation where you go to your neighbor, with whom you

17   have no contractual relationship, nor does your neighbor

18   have any duty, unless we would say your neighbor undertook

19   to -- undertook a duty by virtue of telling you he would

20   try to get you an extension.

21                   The distinction is my client had a

22   contractual relationship with his insurance carrier and

23   submitted his claim, as he says in his affidavit pursuant

24   to his insurance policy, and notified his carrier in

25   accordance with his obligations under the policy.


                      Shari J. Steen, CSR, RMR
            Official Reporter, County Court at Law No. 3
                                        Motion For New Trial     17
                                           February 10, 2015



1                     He then believed that his carrier had a

2    duty to him to seek to resolve that claim.     And

3    Mr. Voelkner was assigned and undertook direct

4    communications with opposing counsel on this case and

5    obtained extensions that were obtained.     And then my

6    client testified that he was advised that he would have

7    plenty of time and that there -- there was no answer

8    deadline in place.

9                     And so I do believe that there is a duty

10   because of the contractual insurance relationship between

11   my client and his insurance carrier that rises above any

12   duty that we might discuss related to you and your next

13   door neighbor.

14                    THE COURT:   But in paragraph seven, he

15   says, "In September of 2014, I was told by Fireman's that

16   my insurance policy didn't afford coverage for the claim,

17   and, therefore, defense to the lawsuit would not be

18   provided."

19                    So then at that point, Mr. Voelkner becomes

20   a stranger to the transaction because he is telling him,

21   "Hey, we have absolutely -- we don't have a dog in this

22   fight.    Good luck."

23                    MR. COX:   But that is not what Mr. Voelkner

24   stated.    He did not say, "I don't have a dog in this

25   fight."    He did not say, "You need to file an answer by


                        Shari J. Steen, CSR, RMR
              Official Reporter, County Court at Law No. 3
                                       Motion For New Trial       21
                                          February 10, 2015



1    relationship?

2                    MR. COX:   Well, I believe that the policy

3    remained in force and effect for other potential claims

4    that might arise or asserted within the policy period.      So

5    I do believe that a contractual relationship existed.

6                    But separate and apart from that, I believe

7    that my client reasonably relied upon his insurance

8    agent's assigned adjuster who communicated on multiple

9    occasions that counsel for Fireman's Fund specifically

10   advised my client that he had obtained an extension of the

11   answer deadline and that there was no answer deadline in

12   place.

13                   And it is my belief that this evidence

14   establishes that my client, who was under a mistaken

15   belief, had exercised due diligence in tendering this

16   claim to his carrier and believed that he had an

17   opportunity to find out when an answer deadline might be,

18   when it was set, and that he did not miss the answer

19   deadline because of conscious indifference, but rather had

20   a mistaken belief based on his communications with his

21   insurance adjuster about this claim.

22                   THE COURT:   And the insurance adjuster

23   received on October 6th an e-mail from Mr. Reddall that

24   says, "Please make sure your insured is aware of the

25   status of the litigation.    I will be providing with the


                        Shari J. Steen, CSR, RMR
              Official Reporter, County Court at Law No. 3
                                       Motion For New Trial          22
                                          February 10, 2015



1    filing a motion for default judgment if no answer is filed

2    on his behalf by 5:00 p.m. on Friday, October 10, 2014."

3                   To which Mr. Voelkner replies, "Thanks.      I

4    made the client aware on Tuesday the day after you sent

5    this.   Regards, Joe Voelkner, general adjuster."

6                   MR. COX:    And we have no evidence of the

7    means by which Mr. Voelkner apparently made my client

8    aware of the deadline.    And, in fact, my client says that

9    he was never advised of that February –– he had no

10   knowledge of that October 10 deadline.

11                  THE COURT:    But wouldn't anybody that gets

12   sued say, "I didn't know"?    I mean, the only third party

13   we have that you contend is acting on your guy's behalf

14   says, "I made my client aware that you were going to take

15   a default judgment against him."

16                  And our last conversation -- this is

17   Mr. Reddall -- "In our last conversation, you indicated

18   you were going to advise your insured of your decision",

19   and that is regarding the coverage, "And the need to

20   defend itself in the litigation."

21                  And so on the paperwork, do I believe Jeff,

22   who you have told me got all these extensions and had this

23   fiduciary relationship -- or contractual relationship at

24   least with your client, who says, "Thanks.    I made my

25   client aware of this the day after you sent it"?


                       Shari J. Steen, CSR, RMR
             Official Reporter, County Court at Law No. 3
                                       Motion For New Trial       23
                                          February 10, 2015



1                   MR. COX:    I believe that the lack of any

2    communication to anyone at Hofer Builders at any point in

3    time between Mr. Reddall and Mr. Voelkner corroborates my

4    client's assertion that he was not aware of any answer

5    deadline and nobody had notified him.    And his company was

6    not aware that the February 10th deadline had been set,

7    despite what Mr. Voelkner chose to say to Mr. Reddall in

8    that e-mail.

9                   And that is why my client had the mistaken

10   belief that he had an extension of time and that there was

11   no deadline that was in place between the parties.      He

12   didn't know, Your Honor.    And a lawsuit in which we

13   believe we have a meritorious defense, because of the

14   defect in the forklift and boom extension we have provided

15   that broke.

16                  And we believe that our client should be

17   given an opportunity to defend against this claim and

18   assert the defenses that he has for this lawsuit.

19                  THE COURT:    Any response?

20                  MS. LOBES:    Your Honor, our sole response

21   would be Hofer Builders was put on notice in September of

22   2014 that there was no insurance coverage.

23                  There was no defense to be provided for an

24   attorney for Hofer Builders.    The fact that Hofer Builders

25   was told they had plenty of time -- and plenty of time can


                      Shari J. Steen, CSR, RMR
            Official Reporter, County Court at Law No. 3
                                       Motion For New Trial         24
                                          February 10, 2015



1    still mean today had Mr. Reddall not filed the motion for

2    default judgment.

3                    There could still be no answer filed in

4    this case had no default judgment been rendered against

5    Hofer Builders.   We have no idea if opposing counsel would

6    even have been contacted by now.      So the fact he claims he

7    has plenty of time, even after the October 10th deadline

8    passed, Mr. Reddall waited until November 13th to even

9    file this motion for default judgment.

10                   Hofer Builders had two and a half months to

11   get the answer on file or at least to reach out to

12   Mr. Reddall.

13                   THE COURT:   It wasn't even signed until

14   December 8th.

15                   MS. LOBES:   Right.

16                   MR. COX:   Which I believe corroborates my

17   client's understanding that there was no answer deadline.

18   And Mr. Reddall, knowing full well of an address at which

19   he could assess service on my client, chose not to

20   communicate the deadline that he set.

21                   THE COURT:   Because your client had

22   undertaken Mr. Voelkner to represent him.      And when

23   Mr. Reddall said, "Hey, make sure your client understands

24   I am about to take a default against him.      Thanks."   He

25   said, "I made the client aware."


                      Shari J. Steen, CSR, RMR
            Official Reporter, County Court at Law No. 3
                                        Motion For New Trial          25
                                           February 10, 2015



1                    MR. COX:    And there is no evidence other

2    than that statement.

3                    THE COURT:    Well, did you bring

4    Mr. Reddall's affidavit that says, "Hey, I dropped the

5    ball.    I never did tell Mr. Hofer"?

6                    MR. COX:    No, we did not, Your Honor.

7                    THE COURT:    I mean -- that is what I need

8    to get you where you need to go, and I don't see it.       So I

9    am going to deny the motion for new trial.       Do you have an

10   order?

11                   MS. LOBES:    I do not.    It will be on

12   file -- we can get one on file with the Court.

13                   THE COURT:    All right.    If you will run it

14   by Mr. Cox?   I know he won't approve of the substance, but

15   just make sure he agrees with the form.

16                   MS. LOBES:    Perfect.

17                   THE COURT:    Thank you.

18                   (Recess.)

19

20

21

22

23

24

25


                        Shari J. Steen, CSR, RMR
              Official Reporter, County Court at Law No. 3
