Mauzy, Meachum and Mangrum oh my!

Hinzugefügt: 2026-05-18

[00:00:04]Benitez versus Gonzalez and a Rolling Frito-Lay Salesman, may I have appearances, please?

[00:00:10]Wilson Shirley for the uh defen- or a defendant, Ryan Gonzalez.

[00:00:16]All right. That the Cole Thompson for defendant Rolling Frito-Lay.

[00:00:21]Thank you.

[00:00:23]Mr. Sigman, you going to make an appearance?

[00:00:27]I can't hear you.

[00:00:35]Nope.

[00:00:38]Sure cannot.

[00:00:40]Problematic.

[00:00:41]Especially since you were supposed to be here in person.

[00:00:45]Can you hear me now? Yes.

[00:00:48]Now I can.

[00:00:49]Yeah.

[00:00:51]Ernesto Sigman on behalf of the plaintiff, Rick Sigman, it is. All right. We're here on Zoom because of a last-minute request. Um opposing counsel was gracious to offer it, and I allowed it, but in the future, I'm not going to do that.

[00:01:06]Um everything's in person unless it's agreed to, and it's supposed to be announced at the announcement period for being the Zoom. So, it was problematic for the court staff and the court to accommodate this. I did it this once, but I'm don't expect it to happen again, Mr. Sigman.

[00:01:24]Your Honor, thank you thank you very much for that, and we apologize for the miscue on our side that we fumbled on the announcement. So, we we're very sorry about that. It won't happen again.

[00:01:33]All right.

[00:01:34]What we're here on a motion to quash.

[00:01:36]Whose motion to quash, and what day was it filed?

[00:01:38]Uh Your Honor, Wilson Shirley. Uh it is my motion to quash that was filed on April 17th. I've got it. Thank you.

[00:01:47]>> Uh it's it's kind of moot now. It was concerning a deposition that was uh set for April 23rd.

[00:01:56]Um there's been no motion to compel the deposition.

[00:02:01]Um, so Then why are we here on a most on a motion to quash?

[00:02:07]Well, we're Your Honor, our position is that we're just trying to get the court to help us to go ahead and get a date certain. This is a case that was filed in October of 2024.

[00:02:16]My client was rear-ended by a young man that was driving a Frito-Lay truck.

[00:02:20]Right after the crash, he tested positive for marijuana and cocaine. So, you can imagine that we're pretty keen to to get his testimony. Initially, as a courtesy to the other side because things were in transition and flux, we noticed it and we stood down because the his lawyers changed. He was originally represented by the Dorset firm, I believe. So, we attempted to accommodate that transition.

[00:02:43]We attempted to confer back in early March to try to get it set up.

[00:02:48]And I think at that time the story became that they couldn't find Mr. Gonzalez. And that may very well be the story today, but we've got a December trial setting, a mediation deadline for October of this year, and at this point we just don't want it to delay things and further upset the court's DCO. All right, since you filed this notice of hearing in April, have you confirmed with opposing counsel and asked them a date for their availability? On many several occasions in writing and then also Mr. Shirley and I had a live conversation. And during that time and and this is not to imply that he's at all been recalcitrant or obstructive. It's just one of those things. And when we last spoke a couple weeks ago, he said, "Hey, we can't find him." So, I don't know if that's still the case now or not.

[00:03:32]Uh, Your Honor, if I may.

[00:03:33]Um that is true. I I subbed in for Mr. Dorset on April the 4th. Um I'm not sure why Mr. Gonzalez why somebody accepted service, I guess, on behalf of Mr. Gonzalez, but nonetheless um, without revealing too many privileged conversations, if I'm if I may.

[00:03:53]Um We have not been able to find Mr. Gonzalez. That is up until Friday. I have hired a private investigator who began on April 14th attempting to locate him.

[00:04:06]Uh I was provided a phone number and I actually spoke to said Mr. Gonzalez on Friday. Um I was out of town with family. We talked briefly. I told him what I needed and quite pleasant conversation.

[00:04:25]Um and we agreed that we would speak again on Tuesday to confirm dates that I could give to Mr. Sigman. Uh I have called him Tuesday, three times yesterday, and three times this morning.

[00:04:38]Uh He is Again, I'm not waving anything, but he's not calling me back or taking my calls.

[00:04:44]So, I have no problem presenting him for deposition.

[00:04:49]I just I don't have a date to give Mr. Sigman.

[00:04:53]Well, Go ahead, Mr. Sigman. I just the risk that we run at this point is that this just becomes the ongoing story, and I think that the the true alternative scenario that's more productive is we come up with a reasonable date here pretty soon, and if he doesn't show up, we'll just take the CNA and continue to to move the process forward. That's what I was going to say. Let's just pick a date. Frankly, we shouldn't I'm happy to help, but y'all should have been able to do this yourself. I I agree.

[00:05:22]>> Come up with a date, and Mr. Shirley, if you can find him and he says, "I can't do that Thursday, but I can do Friday," you can talk to Mr. Sigman about it.

[00:05:31]Maybe he'll move it, but come up with a date, and if he takes a certificate of non-appearance, he takes a certificate of non-appearance.

[00:05:38]That's perfectly fine with me, Your Honor. Thank you, Your Honor.

[00:05:41]Do y'all want to pick a date? I mean, you got me. We set this up. You asked for the court time. You want me to go away and say bye-bye or you want me to do I'd like we very much would like for you to help us pick a date, your honor.

[00:05:53]Well, maybe this would be easier, your honor.

[00:05:56]What if we say that we will choose a date within the next 21 or 30 days?

[00:06:03]I'd prefer that it be done in the like the next frankly 2 weeks cuz again, the time that that it it's almost theoretical at this point. You're still having trouble getting them. I mean, let's just pick a date in the next 14 days and be done with it. Well, I depending on my schedule, Mr. Sigmund.

[00:06:22]I can see I'm going to babysit y'all to come up with it a date.

[00:06:28]So, I want to hear from the three of you. What date you're available between now and um June 17th.

[00:06:40]Your honor, part of my predicament, I'm not giving an excuse. I've got mediation training the week of June the 9th. So, um How long does it last, Mr. Shirley? Oh, it's unfortunately, um even though I've done one or two mediations, I have to go to an entire week of mediator training.

[00:06:58]How about June 16th?

[00:07:03]I have got a deposition set in the case that's specially set before Judge Shepherd. Um it starts at 10:00 a.m.

[00:07:13]I How about June 9th?

[00:07:17]That's the I have mediation training all that week.

[00:07:21]We can shoot for next week and see if it works. How about June the 4th?

[00:07:30]I have that date available. So, June the 4th is fine.

[00:07:36]Let's go Let's go June 4th. Okay.

[00:07:40]Who's going to an order?

[00:07:45]I'll prepare an order, Your Honor.

[00:07:47]Please circulate it as a form, then you can send it to my submission email address.

[00:07:51]Will do. You know what that is?

[00:07:54]Yes, ma'am. Okay. Yes, Your Honor.

[00:07:56]Thank you all. You may be excused.

[00:07:58]Ms. Davenport, who represents the defendants, is that correct? Yes, Your Honor.

[00:08:04]Um and Ms. McMillan >> Yes.

[00:08:09]Yes, ma'am. Is there any way that we can see you on the screen with we um push you to show your video?

[00:08:20]There we go. Thank you.

[00:08:21]Um and then there this is set on a um like a motion to enter um an order on the motion to dismiss and um do you need a record?

[00:08:34]That's That's correct, Your Honor. I'm asking, do you need a record? Sorry.

[00:08:38]>> Yes, we do.

[00:08:40]Ms. Racanelli, are you set up for a record? 06 Leslie McMillan versus Baylor Scott and White et al. Let me take the attorney announcement first for the record, and then I will take the pro se announcement.

[00:08:54]Good afternoon, Your Honor. My name is Emily Davenport, and I represent the defendants in this case.

[00:09:09]Is it Do you want me to go now? Yes. I'm having trouble because it keeps saying my microphone is muted, and I'm in safe driving mode, but I'm afraid if I leave I might like cuz I'm not driving, so something weird is happening.

[00:09:26]Okay, well, let me just make you say who you are. Why don't you do that first?

[00:09:31]But you're you need to unmute.

[00:09:34]Mute. Okay, there we go. So, are you muting me so I don't have to worry about it?

[00:09:39]>> muting you. I think it might be AI must be muting you.

[00:09:43]Right? What is the matter with AI?

[00:09:46]Anyway, I'm Leslie McMillan, uh plaintiff, pro se.

[00:09:51]Thank you.

[00:09:52]Um well, we'll keep we'll try to keep you unmuted um just because that would be better for purposes of this hearing.

[00:09:59]Are you in a moving vehicle? No.

[00:10:02]All right.

[00:10:03]>> But I'm on my phone. So, I don't I don't know. All right, well, we can we can we'll move on to the hearing. So, this was in a hearing that we um had set remotely. Um you may proceed on your motion, Ms. Davenport.

[00:10:19]Thank you, Judge. Um this is a healthcare liability claim. The defendants were Baylor Scott & White employees and affiliates. Um the lawsuit was originally filed in 2024.

[00:10:32]Uh Ms. McMillan was a patient of Baylor Scott & White.

[00:10:36]Ms. McMillan didn't serve us with an expert report, and so the suit was dismissed in the original case um on November 12th of 2024.

[00:10:46]There was one lingering defendant in that case named Gary Richards. He's not a Baylor Scott & White person. And so we requested severance from that case in order just to get some finality and close our case out.

[00:11:00]Uh Judge Gamble granted that in February.

[00:11:04]During the hearing on the motion to sever, Judge Gamble asked us to send over an order to dismiss the severed suit because dismissal had already occurred in the original case.

[00:11:15]We sent over the order for severance and the order for dismissal, but she only signed the order for severance. So, we're just setting back up the order of dismissal, which Well, I'm sorry. And don't you need to go to a Judge Gam- Have you asked Judge Gary Gamble to hear this? No, we haven't. Um can we go back to her and ask her to hear it? Well, I think it sounds like she ruled, right?

[00:11:37]Did she rule?

[00:11:38]>> on the severance and then asked me to It was a little bit weird, to be honest.

[00:11:42]Asked me to submit an order for dismissal. I think it's really ministerial, judge, because it's already dismissed in the original case, and we're just trying to carry that over and close out the severed case.

[00:11:54]>> [sighs] >> I thought I had seen this with Judge McCallum.

[00:11:58]And it was the >> on the original hearing. That's right.

[00:12:01]But he was in November. He heard and granted the motion to dismiss on November 12th of '24.

[00:12:08]And then we moved for severance, and then Judge Gamble heard the severance.

[00:12:12]Um and then here we are. We're just trying to get the case closed out on the dismissal that was entered in November.

[00:12:46]And this is the severed case, which includes all defendants except for Gary Richards. That's correct.

[00:12:56]But you don't You represented a little bit that Judge Garrett Gamble had ruled, but she had not ruled. I I may have I may have been confusing. So, Judge McCallum heard it originally in the original case in 24-306 in November.

[00:13:11]And he ruled on the motion to dismiss, and he entered an order dismissing Baylor Scott & White and all the BSW defendants.

[00:13:20]But that >> An interlocutory order.

[00:13:23]Thank Well, I'll come to you in a minute. Let me let her finish, and then we'll you'll get your chance. Thank you.

[00:13:28]Okay. But that left us in the suit with Gary Richards.

[00:13:33]Judge McConnell wrote interlocutory on the order. I don't know exactly why he did that. It It isn't an interlocutory order for us except for to the extent that there's this other defendant in the case.

[00:13:48]And so to avoid any confusion, we asked to be severed out to our own lawsuit so that the case could wrap up and and be closed. Judge Gamble granted the severance and in that hearing asked us to submit an order of dismissal. I did.

[00:14:04]She did not sign it. Um and so I'm just basically following her instruction for dismissal of this second lawsuit, but I think it's been a serial because the original suit concludes the motion and order of dismissal.

[00:14:21]Thank you.

[00:14:22]All right. Mince.

[00:14:25]McMillan, response.

[00:14:30]So as pro se I I you know, counsel who is a lawyer doesn't really know what's going on either and neither do I frankly. Um it's been a very confusing case with these administration you know, loopholes or issues.

[00:14:50]Um I can't really speak to why it the judge and what we're supposed to do as far as what's been happening cuz I can't figure it out either. However, I did just file a motion to amend this whether you dismiss or not to dismiss it so that I can refile because of a recent Supreme Court RICO case that would apply here and I just got you know, even if you dismiss it, I just want to be able to re-file or be able to re-file criminally for RICO charges on these people.

[00:15:35]Um, and I I'm going to I do I was injured from the Pfizer vaccine and so I still have brain fog, so I do better writing than I do speaking. I can't think quickly anymore and things like that.

[00:15:49]Um, so I will send something because I just got something from those attorneys responding to my RICO file.

[00:15:58]And um basically they're they're saying that, you know, it can't be you know, RICO doesn't apply and things like that, but it actually does and I would not have filed this case.

[00:16:12]I even put in my original pleading that it was too soon for me to file, but because of the statute of limitations, I was forced to file. And so I wouldn't have even filed because a RICO has a longer statute of limitations than like breach of fiduciary duty and things like that. So I just, you know, you guys can do whatever you're going to do cuz I'm not a lawyer, but part of why I don't have a lawyer is because of what what happened to me and my experience with lawyers dealing with what they did to me originally.

[00:16:42]Um, but I just want to be able to re-file RICO criminally and then civil and I'll get another uh, know, hopefully I'll be able to find you know, a RICO attorney who who can take this case. So that's just kind of, you know, I don't really know what I'm doing either, but counsel is confused also, so >> [laughter] >> I feel it even more dis- of a disadvantage. I just you can just read what I filed. I just I put it all in there and and just my heart is just in in and so then you can just see. I just so many people are getting harmed by what's happening that I just want to stop them.

[00:17:23]You know, and the courts are the only way to do that. So.

[00:17:28]Um thank you. I So I'll go back to you.

[00:17:31]Um it's your motion Ms. Davenport. I Uh I haven't seen the order and I think I'm going to have to take this under advisement so I can better understand what Judge McCallen and Judge Gary Gamble did. And if they ruled or if they didn't rule here. So I'll do a little bit of um oh communication with my fellow judge and the visiting judge and see what um they intended. Um but also I would like to see a proposed order from you. I think it's let Ms. McMillan I know what your proposed order is it's just a denial of what they're asking but I want to see a proposed order from you Ms. Davenport and the easiest place for me to see that proposed order, the best place for you to send it is to copy Ms. McMillan and to send it to 201.submission at TravisCountyTX.gov.

[00:18:27]201.submission at TravisCountyTX.gov.

[00:18:32]That's the proposed order that you uh want, the form that you want it in, that you were asking this court to sign.

[00:18:41]We'll We'll do it, Your Honor. Um the orders are attached as exhibits originally A and B but now for your purposes in Boxy Bot as DO1 and DO2 to the motion. The first one is Judge McCallen's order, the second one is Judge Gamble's order.

[00:18:59]On the motion to amend the original order of dismissal, Judge the court does not have plenary power over that at this point in time. That order was entered That order of dismissal was entered on November 12th of 2024.

[00:19:16]Um the plenary power expired in 30 days.

[00:19:20]Plaintiff filed And I filed a response to what we got last night from her, which was this motion to allow her to amend the the order. Um I'm not for sure that's set in any regard, but I hear what you're saying about the plenary power of the court, Ms. McMillan. I mean, none of us can give you legal advice. We are not lawyer We are not your lawyer. Right. But there is a concept in the law that I think is important for you to understand, which is when um there are there are certain concepts of plenary power, which I think Ms. Davenport is arguing. Though, Ms. Davenport, I'm not for sure I think there probably is plenary power here.

[00:20:05]Um I I disagree with you cuz it's not been dismissed yet. It's a live case. It But, Your Honor, it it is dismissed on the chapter 74 351 dismissal that Judge McCown signed. Uh and then I agree that I'm not going to I'm not going to amend anything Judge McCown did. One thing I'm not going to do is go back into anything Judge McCown did or didn't do. I'm going to state my disagreement Judge McCown would be the person who you'd have to go to. That'll be a little more difficult, but if you're going to ask to have Judge McCown reconsider a ruling, then that would be how you would have to do it. You'd have to ask and you'd have to go to court administration and you'd have to ask for Judge McCown to reconsider the ruling. And it'd be his decision whether there is still plenary power or not, but it is a concept of jurisdiction, Ms. McMillan, that the court at some point does no longer have the power to act in a case because it loses jurisdiction. Um I don't know that I without researching it more, Ms. Davenport, I don't know that I um completely agree with what you're saying, but it's also not before me today. It is not before me that there is a motion to reconsider a ruling made by Judge McCown. I probably wouldn't hear it in any case unless court administration told me Judge McCown was no longer taking cases and didn't want to hear it. But, um that's not before me today, so it's kind of a moot point.

[00:21:34]What is before me today is the motion to dismiss and an order that Ms. Davenport is going to send me that I believe would dismiss the case in total with regard to these defendants. And if that happens, if I sign it, again, I cannot give you legal advice, Ms. Ms. McMillan, but then the clock would be ticking.

[00:21:57]That's how I read it, but I don't know what I'm going to do.

[00:22:02]That's how I've read things, too, and then she she comes back and says things, but I don't know.

[00:22:08]I'm just saying, that's all I'm hearing on this today. I'm taking it under advisement. Ms. Davenport's going to send me her order. I will consider it.

[00:22:16]I'm going to look at it. And then, Ms. McMillan, if you believe that there is if you are unhappy if the order is granted um or even if it's not, you will have work to do on what to do next. But, as for now, what is in front of me is the motion to dismiss. I have it. I am taking it under advisement, and I will let you both know.

[00:22:33]Thank you so much.

[00:22:35]>> Thank you. You are excused. Thanks, Judge.

[00:22:38]Have a nice day. You, too.

[00:22:42]Smith versus American Mercury Lloyds Insurance Company.

[00:22:47]And counsel which there are three motions you claim you can get them all done in 30 minutes, so you have 15 minutes each to argue three motions. How do you want to proceed?

[00:23:00]Uh Yeah, go ahead, client. I mean, they all of are the same issues, just kind of combined.

[00:23:04]>> Yeah, I mean, it might make It might make the most sense, Your Honor, if we we have a dispositive motion and a motion to strike their expert, which relates directly to the dispositive motion.

[00:23:14]Um it may be more efficient to start with that one, and and if there are still issues remaining, uh she's got a motion to strike an expert of mine, and I have a another motion to strike two of the non-retained experts that she designated. If the case is resolved on summary judgment, those motions would be moot. So, uh perhaps perhaps we should just start with the summary judgment.

[00:23:33]All right, is that okay with you, Ms. Gergis? Yeah, I think I'll probably end up arguing some of the other motion when I'm arguing the summary judgment. So, I'll I'll try to keep them separate as much as I can, but I I'm fine with allowing the um summary judgment to proceed first. I think it was filed first, too, so that's fair. Okay. All right, Mr. Wilbert, you may proceed then. All right, thank you, Your Honor.

[00:23:51]Um we've got a uh a dispute in this matter regarding a hail claim to a residential property um that occurred on the claim date of loss of May 21st, 2022.

[00:24:01]Um about 5 months after the date of loss, the insured presented the claim to its insurance carrier. He had no reason to believe that his property was damaged by hail prior to that date, but um a traveling roof salesman knocked on his door and told him he would be happy to conduct an inspection for him and let him know if he thought his roof needed to be replaced.

[00:24:18]Um the inspection went forward. Uh the claim was presented to the insurance carrier. The insurance carrier uh inspected, sent an adjuster.

[00:24:27]The adjuster determined that there was no hail damage to the property, no no wind damage to the property, and Mercury issued a denial of that uh of the claim.

[00:24:38]The insured then hired a public adjuster um and hired counsel, and counsel filed suit with respect to the claim.

[00:24:46]And what the matter has been in suit for um a little over more than a year and a half um and discovery has taken place.

[00:25:00]Plaintiff has designated experts and that's the other um motion that we have pending, a motion to strike Brandon Allen, which is one of her retained experts. The plaintiff himself has no evidence that there's any hail that occurred on this claim date of loss, which is within a specific policy period issued by Mercury. Um the the case kind of comes down to the plaintiff's expert testifying or opining that all of the claimed conditions on this roof occurred in May of 2022.

[00:25:29]And because the conditions occurred in 2022, um the roof needs to be replaced according to the plaintiff's experts.

[00:25:36]We moved for summary judgment and to strike the plaintiff's expert testimony on the same essential ground, which is the expert does not actually have a reliable basis to opine that hail occurred and damaged the property in May of 2022. Therefore, there is no evidence at all in the record that hail did in fact damage the property in 2022.

[00:26:01]And because of that, Mercury did not breach the policy and did not commit bad faith in denying the claim.

[00:26:08]Now, the reason for our motion to strike the expert, which um we've provided the the the briefing materials to the court uh recently.

[00:26:19]Um the expert went back the expert agreed that the roof has been on this property for approximately 15 years prior to the date of loss.

[00:26:29]The expert, Brandon Allen, looked at 1 to 2 years of hail data and surmised that the conditions on the property that he saw were consistent with hail occurring in 2022.

[00:26:41]Well, that is not sufficient in this case to to be reliable testimony. It's not sufficient to create a question of fact on the breach of contract because the expert did not consider any other causes prior to one to two years prior to the hail storm.

[00:27:00]Um he agreed that there were other hail storms that occurred in the property. He actually conceded in his in his deposition that all you can do is determine whether the conditions are consistent with a date of loss, not to determine whether they actually occurred on the claim date of loss. He's basically saying um yeah, the the 2022 storm could have caused this, but he doesn't establish that fact. Um that isn't something that is sufficient to create an a question of fact, and it's not actually reliable testimony. Because in Texas a uh reliable expert testimony needs to be based on a probability standard, not simply on a possibility or could have standard. And that's all that we have in this case on the plaintiff's side. Yes, the conditions could have occurred in 2022, but he doesn't establish it. There's no methodology to establish that any conditions occurred on that date.

[00:28:00]Um there's case law that we cited in our briefing that experts have to exclude other possible causes. Um and as I mentioned, there were other hail storms that occurred in this property based on data that, you know, that that's in this case that occurred in 2023, 2021, 2017, two storms in 2015, and a 3-in hail storm in 2009.

[00:28:25]All of those storms could have affected the property.

[00:28:28]Um and this expert, Brandon Allen, did not review any of those storms. He did not take them into consideration. He in fact didn't even know that they occurred. Um so, you know, his testimony that uh you know, the conditions on the roof resulted from 2022 are unreliable.

[00:28:47]He also testified in his deposition that, you know, he he bases his opinion that a 2022 hail storm occurred at this property based on a database that's provided by the National Oceanic and Atmospheric [clears throat] Association.

[00:29:05]And during the deposition, he actually conceded to me that he didn't know whether hail that day affected the property. He also testified that if that he didn't know how large the hail was in 2022 that could have affected the property. And he had no he could he agreed with me that if other hail storms with hail of the same size affected the property, he that that possibly could have caused the condition.

[00:29:35]And that's why these motions were arguing these motions simultaneously, Your Honor, because it's the plaintiff's burden to establish damage occurring in a relevant policy period.

[00:29:47]Um this expert has not established that.

[00:29:50]This expert cannot create that question because all he has is supposition or surmise. That's not sufficient under under Texas law. There's no other evidence in the record establishing that damaging hail occurred at this property in 2022, and even if there is, there also is no evidence that an entire roof needs to be replaced in 2022. So, that's the basis of the argument, Your Honor, is that there just simply is no evidence at all um establishing the causation of the damages of this property. And when the matter went into litigation, Mercury sent its own engineer to the property, and he concluded that the roof actually was not damaged at all, um but there were other hail storms again that affected the property back to 2009 that could have potentially affected the property. So, if he's wrong that there's actually hail damage at this property, there's no evidence one way or the other which of the hailstorms caused the damage. And again, your honor, back to the to the plaintiff's perspective, he didn't even know or or or even think that his roof had damage.

[00:31:00]This The only reason he's making this claim is because a traveling roof salesman knocked on his door and and offered to get him a roof.

[00:31:08]That's how this all is coming out. Um so, if there's And the rest of our argument on uh on summary judgment is reflected in our briefing. We certainly believe that um even if the court finds a question of fact on the contract, there's certainly no bad faith. Uh Mercury had every reason to uh This is a good faith claim investigation. It's a good faith coverage termination.

[00:31:31]Um any extra contractual claim, even if the the contract claim survives, is certainly not substantiated.

[00:31:38]Um the evidence clearly shows from our perspective that um there there just simply isn't evidence from uh from the record of a 2022 storm causing damaging hail to this property.

[00:31:52]Okay. Ms. Gergis?

[00:31:55]Thank you, your honor. So, I I'm going to just go through kind of the timeline that led up to why we're here today. So, there was this hailstorm in May of 2022.

[00:32:03]Plaintiff testified that there was a hailstorm and that he noticed all his neighbors getting new roofs. He asked the roofer to go and inspect his roof, and the roofer from Linear Roofing confirmed that there was hail damage.

[00:32:16]Um he filed a claim, and the adjuster from Mercury also confirmed that there was hail damage. In fact, his photo report has several photos of hail indentations where granules are lost in a circular shape due to hail.

[00:32:32]That wasn't enough for Mercury, and he also got a public So, plaintiff got a public adjuster. This is now the second person to go out and inspect the property personally and confirm that there is hail damage. Those two individuals have been designated as non-retained experts.

[00:32:51]In addition to that, despite having all of these people go in there and submitting the reports and estimates and photos, including somebody from Mercury, Mercury stood by its denial. Plaintiff retained counsel and filed suit where we retained Brandon Allen, who is an expert and has been an expert across several states regarding hail and wind damage to properties. And he's also [clears throat] even worked for insurance companies. So, his methodology has been held up and it's um been used by insurance companies. He found that there was hail damage and Mr. Wilbert has a very interesting way of presenting certain issues that were brought up in the deposition, but our response to that basically confirms that he did he does not need to rule out every single hail storm that ever hit the property. There's a lot of case law that does that.

[00:33:44]But he does explain why he believes that the hail that fell was from the 2022 date of loss. He is even asked about it specifically and he confirms that it wouldn't have been older because the older ones look different. They look a lot lighter. So, therefore, based on all the corroborating evidence and the testimony of the insured, the supporting weather data, the photos, the review of the claim file, his own investigation, he was able to conclude that it was from the May 2022 date of loss.

[00:34:15]I also I want to go back really quick in the timeline of events. After Mercury denied the claim, 6 months later they dropped him. They sent him a letter saying, "Your roof is not in good condition." After they refused to pay for the claim and there's photos in their own claim file of hail damage, they completely dropped him.

[00:34:32]Um despite all of these, which I think I counted a total of nine points of evidence, defendant has filed a no evidence summary judgment claiming that there is just absolutely no evidence of covered damage and that the case should be tossed. I'll also note that within their own summary judgment motion, there is a fact issue raised because they concede that there is hail damage, then they just say it's either wear or tear or it's hail damage and if it's hail damage, it's from the 2009 storm, which I'll get to in a second. But based on their own motion, there is a fact issue that should preclude summary judgment, but even in addition to the fact issues within their motion, there is a lot of evidence. I think they just don't like the evidence and so they filed the summary judgment.

[00:35:16]After filing the summary judgment, plaintiff filed a motion to strike their retained expert uh Mr. Moody, who has been struck before by a Texas court. Um in response to us filing the motion to strike, the uh counsel for Mercury requested to postpone the hearing so that they could get their own motions to strike. That's why there's competing motions to strike.

[00:35:41]And in response to our motion to strike Moody, they file um a response and a completely supplemental report. We are moving to strike that report. It was clearly just to remedy all the issues that were raised in our motion to strike Moody, but it's 244 days late. So it should not be admissible, it should not be considered all of the um deficiencies highlighted in plaintiff's motion are still there and it should not have been uh the court shouldn't allow it to be remedied by such a late report.

[00:36:11]But the issues with regards to Moody is that he does not explain why or how a 2009 hail storm is the one that's being talked about here. And it's also misleading to the jury. It's not His findings are not reliable because they contradict Mercury's own findings. So, Moody's report says there's minor granular loss from hail. Mercury says there's absolutely no hail. It's all wear and tear.

[00:36:35]He says it's not from 2022, it's 2009.

[00:36:38]Again, Mercury says not 2009, not 2022, no hail at all, all wear and tear. And then Mercury sends a letter denying him or dropping him from coverage entirely, while Moody's expert opinion says the roof is in good condition and it doesn't need to be replaced. So, there's so many can um conclusory and con- Go ahead, Yana. You have got to slow down or my court reporter is absolutely um going to >> [laughter] >> be very unhappy with everyone here, especially you. You wanted a record, so you have to speak slowly and clearly and not um go not go nearly as fast as all that.

[00:37:19]Understood. I'm enthusiastic about it.

[00:37:22]I'll slow down.

[00:37:23]Um Thank you.

[00:37:30]Um I'm going to address a couple of the arguments that they made. I think their reply to the summary judgment basically just attacks evidence. They say, you know, "Hey, despite the nine or 10 points of evidence that there is hail damage within the policy period, they decide to focus on um the letter where they drop him entirely and the fact that their adjuster said that there was hail damage at the property." They say it's hearsay and that the their own adjusters uh statements regarding the hail damage is inadmissible, but that's an exception to hearsay.

[00:38:08]And as is the letter, the letter is their own documentation. So, I don't know how that wouldn't at least that's definitely admissible and would raise a fact issue. With regards to them saying that it's wear and tear and so it summary judgment should be granted because the roof has hail damage from 2009 or it's just wear and tear. There's a lot of case law out there that says wear and tear is a condition of the property. It is not a basis to preclude coverage entirely, which is essentially what Mercury's trying to do. So, I'm going to quote some of the case law that we had. I had copies and to give the court if this is going to be in person.

[00:38:48]But in Bible Baptist verse Church Mutual, the Northern District stated wear and tear is presently is present in virtually every roof. If wear and tear is a certainty, it cannot be insured against and is thus is not a peril. Then they go on to say there is no dispute in this case that wear and tear is an excluded cause of loss. The question rather, as it relates to the applicability of the doctrine, is whether wear and tear is a peril. So, they make the comment that they're entitled to summary judgment because of the concurrent cause doctrine, but this court went on to say wear and tear is not a peril for the purposes of the doctrine because it is not a fortuitous event. So, basically, you know, there is no case law to support that a condition of the property would preclude coverage. Actually completely would support our bad faith findings.

[00:39:40]Then there them saying that Brandon Allen didn't wear rule out several other causes or nine other hailstorms within the policy period is also not supported by law. There's a lot of case law in our response that says he only needs to establish that all of the damages came from a covered cause of loss, which he does. There's also another case I had for the court, Kabir Marine verse Landmark, which the Southern District says so long as the plaintiff's expert is able to show all the evidence is show that all of the damages came from a covered cause of loss and has evidence to support that, it's up to a jury to allocate whether there were other causes. It's not a summary judgment issue. It's It's a fact issue.

[00:40:27]Essentially, a lot of what their arguments are is they don't like our evidence, but there is a fact issue here. Um so, for those reasons, Your Honor, we believe that the summary judgment should be denied as should the motions to strike our experts, and the court should also really consider the motion to strike Moody because any uh any issues raised was attempted to be remedied by a very late report, which shouldn't be included 244 days after the deadline to designate experts, and it's misleading to the jury. It's not going to help them determine any real fact issues here.

[00:41:09]Okay.

[00:41:11]All right, Mr. Wolbert, anything else to say on these? But, yes, Your Honor, a couple of couple of points with what uh we just heard. Um this this all comes down to an expert who is basically saying, "Yeah, it could have happened in 2022."

[00:41:27]That's what the evidence shows. That That is the That is the gravamen of their case. The plaintiff has no idea.

[00:41:33]No one in this No one in this uh litigation other than Eric Moody or I'm sorry, other than Brandon Allen has testified that the roof was damaged because of hail in 2022. And when you drill down to what Brandon Allen actually testified, he doesn't have actual knowledge or a methodology to make that assertion. That's why there's so much litigation in Texas on insurance claims is whenever experts like this um are permitted to testify to a jury and just say, "Yeah, it could have happened on this day." You don't need an expert to testify to that. Anyone can testify it could have. We need experts to testify as to what is probable based on a sound methodology, based on a basis under Texas law, which we laid out in our briefing papers, Your Honor. Simply saying it could have happened in 2022 is not sufficient. I agree that Mr. Allen did say um older hail is gray, older hail marks are gray. He was referring to a 2005 date. You'll see that right in our briefing and I and I know we don't have all day to you know, read every every page and line, but we cited that specifically in our briefing that um his his opinion about what is, you know, old hail versus new hail relates to the date 2005.

[00:42:54]Um he conceded he doesn't know how large hail was that occurred in 2022. Page 69 of the of his testimony. Um he does not have any information about uh the condition of the property prior to 2022.

[00:43:11]Um he conceded that the damages could have occurred earlier than 2022. There are many dates uh that hail could have occurred prior to 2022. So, you know, just back dooring in causation evidence this way without really establishing it is contrary to Texas law. Um very briefly with respect to um the comments about the roofer confirming hail damage and Mercury's adjuster confirming hail damage. Um there's no The adjuster is an independent adjuster.

[00:43:45]He's whatever Mr. Smith testifies to about what he said is hearsay. We've objected to that.

[00:43:52]Um that adjuster has a report where he confirms there's no hail damage to the roof.

[00:43:57]Um and that's part of the summary judgment record.

[00:43:59]Um the plaintiff is saying that the roofer who's got an interest in the proceeds confirmed there was hail damage. He doesn't establish when it occurred.

[00:44:08]That's the whole point here. You know, Mercury is saying that there isn't hail damage to the roof, but even if there is, this is not an inconsistent position. There's no hail damage, but even if it is, the most likely date that any hail damage occurred would have been in 2009 when 3-in hail fell at the property.

[00:44:26]There's nothing inconsistent with saying those things. Mercury's investigation and expert opinion show that there's no evidence at all that hail damage occurred in 2022, and we got to bring it back to the point that this is the plaintiff's burden. The plaintiff has to show the coverage, and you take out Brandon Allen because all he has is speculation, and there's no question any longer. There just isn't a question about this.

[00:44:50]Um Couple other points real fast.

[00:44:54]As to Mercury dropping Mr. Smith because from the policy, that's because it's a 20-year-old roof that was in poor condition, obviously.

[00:45:05]It has nothing to do with a 2022 date of loss. That does not raise a fact question. We addressed that in our briefing papers as well.

[00:45:13]The The expert, Eric Moody, he he explained in his report his um his methodology to determine whether there was hail hail damage at that property. Consistent with what I've been saying, he determined there was not.

[00:45:29]There might have been some granule loss from hail, which does not amount to damage, but if that's the case, if then it occurred, there's no there's no way to determine when it occurred, certainly not in 2022. So, there's nothing inconsistent about what Moody is saying versus what what our argument is premised on.

[00:45:48]Um Let me just look here real quick.

[00:45:52]And his his supplemental report, your honor, is admissible because the trial date is in August. The initial report identified several bases for for his opinion. Supplemental report simply elaborated on those establishing in particular that hail needs to be 1.25 inches or or larger to damage a roof. There's no evidence to the contrary in this record and there's no evidence that any larger hail affected this property. So, you know, for those reasons we think summary judgment is warranted.

[00:46:25]There's simply not a question that the jury can resolve without considering an expert who does not establish has not met the Daubert standard for admissible testimony. Further, we move to strike two of her non-retained experts and that's simply because the expert disclosure does not address their opinions with sufficiency.

[00:46:51]She replied and said their their opinions are in the record. None of those opinions establish that hail damage occurred in 2022 or if so that there was a basis for those for them to opine on those questions. So, you know, we have no objection to these witnesses being deposed or testifying in a fact witness capacity, but as an expert witness we've we've moved to strike them as expert witnesses and causation and timing of hail damage if you're if you have no basis for opining on that, that's impermissible as a lay witness.

[00:47:28]And those are the points I wanted to raise with them.

[00:47:31]Okay. Anything else, Ms. Gergis?

[00:47:34]I'd I'd going to just I didn't talk very much about the other non-retained experts. Um, he says that there are no opinions that say it's from hail, but there is that we point to the Mr. Ingram. He emails Mercury and says hail damage documented on a roof is consistent with Haag standards of fresh hail damage to a composition shingle. Um this is also similar to and also corroborated by the public adjusters estimate that notes wind and hail damage from that date of loss. These are individuals that were there shortly after the loss. Um and then with regards to Allen, I'll I'll I'll keep it quick um cuz this has kind of shifted from a no evidence summary judgment to we don't like Allen or Allen's evidence, but I mean his methodology has been upheld. I think I I mean he went and he spoke with the uh plaintiff, he inspected the property, he ran weather data, reviewed the file that had other photos of hail damage including from Mercury. Um you know, all of the complaints I hear are not proper for a strike or an exclude, it's proper for cross-examination.

[00:48:48]Um so for those reasons it sounds like we've kind of shifted past and and have established that there's a fact issue with regards to evidence and it's become all about Allen, but I think that those arguments are are proper for cross, not for an exclude.

[00:49:07]All right. Thank you, counsel.

[00:49:11]Um I will take this under advisement for short period of time. I intend to look at it a little closer sometime today and I will endeavor to get you an answer by the end of the week.

[00:49:26]I see your separate trial in August.

[00:49:29]Have you mediated?

[00:49:31]We have. We were unsuccessful.

[00:49:34]Okay.

[00:49:35]All right. Well, I will get you rolling as soon as I can. I don't think I need anything else from you. So unless you have anything else for me, I'm ready to excuse you all from the virtual courtroom.

[00:49:50]Thank you, Your Honor. Thank you, Your Honor. Thank you. Y'all are free to go.

[00:49:54]Take care.

[00:49:57]And then we'll take up our cases today.

[00:50:00]>> Okay, we're here on the continuance.

[00:50:03]Um Mr. Hoffman, I think it's your motion. Yes, Your Honor.

[00:50:07]Uh okay.

[00:50:11]Go ahead. You may proceed. Oh, okay. Uh Your Honor, this is a 2022 August 16th, 2022 accident.

[00:50:20]Um obviously [clears throat] suit was filed in 2023. The attorney that was handling this before me, Lilly Wilson, left our firm at the beginning of May, which I took over um this file and a few of her other ones.

[00:50:32]And after having a brief opportunity to review the file, there's a lot of matters [snorts] that still need to be tackled by the defense that I think my predecessor um failed to properly tackle.

[00:50:43]Um she had three trials set in May that I was able to either move or get settled. This one's just one of the ones that's not able to move, which is this June setting. Uh not able to settle. The reason also that we're needing additional time, this isn't your typical personal injury case where it's a fight for policy. Policy limits were conveyed early on in the in due to some kind of issue, they were not accepted and now there's an accusation of an open policy with my client's insurance saying that a proper stowers hasn't been placed. So, my client's personal assets are on the hook for this trial as well, and I think that there's things that need to be tackled. And one of the things is the plaintiff's employment records and testing. She's claiming lost wages and lost earning capacity because of this accident because of a delay in passing or taking some sort of exam. We sent out subpoenas uh mid-May or late May, uh May 23rd, I'm sorry, of this year to her employer to show documentation of when those tests were taken and when they were passed, as well as any physical limitations on the job, accommodations for those physical limitations. These are things that my predecessor should have tackled but did not. Um, I think this is important on this case given the minimum policy limits involved, the damages involved.

[00:51:59]Um, the damages model not paying not accounting for pain and suffering is in the mid-40s and up and, you know, if Mr. Schulke is a seems like a wonderful attorney. If he hits on all his marks, my client's going to have an exposure here and I think there's additional discovery that needs to be done to prevent that or at least if it's going to happen, I want to make sure that every stone's been turned to verify if Ms. Mayfield's claims are legitimate. Um, not included on my motion, there is another case that I'm an attorney on. It's um, Falcone versus um, let me pull it up.

[00:52:36]Uh, Sandberg.

[00:52:38]Another issue with one of the attorneys in my office had some mental health issues come up that made me take over his docket as well and this case is one of the ones that's looming that um, is a bit older than ours. The trial's set for the same week and if I'm not able to move this, uh, there's an issue of who's going to try that other case. I tried to get coverage through other attorneys in the office and we're not able to do so.

[00:53:02]Um, so that's another reason why I'm needing to move this one since that case is a bit older than um, the Mayfield file.

[00:53:09]Um, other than that, it's pretty straightforward. Um, if we did get a continuance, I'd request it to be, you know, 60 days or so, so a mid-August setting or I put down the week of the 7th. I think it's the 8th of September as options. I haven't um, confirmed with Mr. Schulke about his availability should this be granted, but we can certainly touch base if the court sees fit.

[00:53:31]Um, and that [clears throat] that's basically it, your honor. Like I said, this is a pretty short hearing, 5 to 10 minutes.

[00:53:37]Okay. All right, Mr. Schulke.

[00:53:41]Uh, yeah, I'm sympathetic to Mr. Hoffman's plight, but I mean, if you look at the motion, the grounds for the motion was that he needed time to get up to speed on the case.

[00:53:52]Um, and he has the dates right, and I've talked to my client, and she wants to try this case. I mean, it was a 2022 car wreck.

[00:53:59]We filed it in 2023.

[00:54:01]Trial was set back in October.

[00:54:04]Um, she is a traveling respiratory therapist, so she takes jobs, you know, all over the country. She's taken a position for Austin for this trial date.

[00:54:16]Um, do not know where she would be at any future trial date. Um, I I do understand his plight. What I am concerned about from hearing him talk because because the situation is, I don't I mean, if you are inclined to move it, I don't want to reopen everything where there's a whole lot of additional expense on my client. Um, you know, for example, they have an expert witness that challenged one of my client's medical bills, but not the other.

[00:54:46]Um, we've done discovery on that, deposed her. I don't want to, you know, get new opinions where we have to now redo depositions or or those kind of things. So, um, we'd prefer to keep the trial date. I don't know if there's a way, I mean, we set it out in so far in advance to make sure we'd be reached. I have not looked at any of the settings for August or September, but I don't want to be in a situation where we set it and then don't get reached and get bumped. So, um, anyway, that's I mean, I don't want to move, but if you do move it, I don't want everything reopened so that it's more expensive that my client has to eat at the end of the day.

[00:55:22]And, Your Honor, with regards to that, I'd be willing to formalize an agreement that the only discovery ongoing would be regarding the lost wage claim, lost earning capacity claim, so there's not any reopening or additional experts obtained on this case cuz other than that issue it appears everything's been accounted for. That's just one issue cuz I believe the sum of the damages claimed for that one issue is north of 15,000, possibly even to 20,000 or so.

[00:55:50]And I don't see any any investigations of that claim on our end. And that's a mistake of my predecessor and I know I'm stepping into her shoes so I have to kind of work with what's been done, but I would like the additional time to fully verify those claims or at least have arguments against them should arguments be present.

[00:56:10]Okay. All right. Well, I did take a look at the motion yesterday and you know, it's not verified and the face of the motion itself just does not present the court with good cause to grant it.

[00:56:27]>> [clears throat] >> So, the continuance request is denied.

[00:56:32]Understood.

[00:56:33]All right. Good luck to you all and um Who do we need to send an order to, Judge? You can send it to Pam Seeger.

[00:56:41]Okay.

[00:56:42]I'll get it signed and y'all can go from there. All right.

[00:56:47]Thank you, Your Honor. All right. Have a good rest of your week. Y'all are free to go.

[00:56:51]Thanks.