Legal Document: KENNETH G. KRAMER vs MIKE SANDONE PRODUCTIONS, INC

On May 16, 2019 a CVR LTR/HERNANDEZ (W/ATTACHED CASE LAW) was filed involving a dispute between and for INJURY OR DAMAGE, OTHER INJURY OR DAMAGE in the District Court of Tarrant County.

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153-308051-19

HERNANDEZ LAW GROUP, PC FILED
TARRANT COUNTY
16850 N. Dallas Parkway 4/19/2021 2:21 PM
Dallas, Texas 75248-1919 THOMAS A. WILDER
214-900-0000 or 817-900-0000 tel | 800-444-8810 toll-free | 972-235-4454 fax DISTRICT CLERK

WWW.JUANLAW.COM

Juan Hernandez
Direct Dial #: 972-234-7800
Direct Fax #: 214-239-2914
Email: juan@juanlaw.com
April 19, 2021

Hon. Susan Heygood McCoy
153rd District Court
Tarrant County, Texas

Re: Kennth Kramer v Mike Sandone Productions, Inc., Cause No.: 153-308051-19

Hon. Susan Heygood McCoy:

Attached are the proposed orders on the MSJ pending in this cause. Also attached are
three cases that were inadvetently not cited in Plaintiff’s response to the MSJ standing for the
proposition that opinions from experts not timely designated should not be considered. Thank
you for your time in considering the motion and our response.

If you have any questions, please feel free to call anytime to 972-234-7800.

Sincerely,

Juan C. Hernandez
Juan C. Hernandez

Copy to:
Darryl W. Calvin, Jr.
Vie e-service and email
Fort Brown Villas III Condo. v. Gillenwater, 285 S.W.3d 879 (Tex. 2009)

285 S.W.3d 879 TEX.R. CIV. P. 190.4(a) (permitting the trial court
FORT BROWN VILLAS III to establish a "discovery control plan tailored to
CONDOMINIUM ASSOCIATION, INC. the circumstances of the specific suit"). The order
d/b/a Fort Brown Condoshares and LRI contained all the requirements of a level three
Management, Inc., Petitioners, discovery plan. See id. Fort Brown subsequently
v. agreed to two extensions of the expert disclosure
Coy GILLENWATER, Respondent. deadline, to August 25, 2005, and September 22,
No. 07-1028. 2005, respectively. Gillenwater failed to disclose
Supreme Court of Texas. an expert by any of these deadlines. On February
April 17, 2009. 10, 2006, Fort Brown filed a no-evidence motion
Rehearing Denied June 19, 2009. for summary judgment, alleging that Gillenwater
presented no evidence that (1) the condition of the
[285 S.W.3d 880] chair posed an unreasonable risk of harm; and (2)
Fort Brown knew or reasonably should have
Don W. Kothmann, Ann S. Taylor, Knolle known of any danger presented by the chair.
Holcomb Kothmann & Callahan, P.C., Austin, TX, Gillenwater's response to this no-evidence motion
for Petitioner. included an affidavit of a previously undisclosed
expert, Paul Carper, P.E. Fort Brown objected to
Andrew B. Sommerman, Heather Lynn Long, the affidavit filed with the response, arguing that
Sommerman & Quesada, LLP, Dallas, TX, for (1) the expert was not timely disclosed under the
Respondent. scheduling order; and (2) regardless of the
scheduling order's application, the expert's
PER CURIAM.
affidavit was conclusory. In response, Gillenwater
argued that Carper's affidavit was competent
In this premises liability case, we decide
summary judgment evidence, that Texas Rule of
whether Texas Rule of Civil Procedure 193.6,
Civil Procedure 193.6 did not apply in a summary
which provides for the exclusion of evidence due to
judgment setting, and that even if it did, Fort
an untimely response to a discovery request,
Brown was not unfairly surprised or prejudiced by
applies in a summary judgment proceeding. We
the affidavit. The trial court sustained the
hold that it does and, therefore, reverse the court
objections, excluded the expert's affidavit, and
of appeals' judgment.
granted Fort Brown's no-evidence motion for
summary judgment. The court of appeals reversed,
In April 2004, Coy Gillenwater and his wife
holding that the trial court abused its discretion in
rented a condominium at the Fort Brown
striking the expert's affidavit because Rule 193.6
Condoshares in Brownsville. While visiting the
does not apply in a summary judgment
condominium swimming pool, Gillenwater
proceeding. 286 S.W.3d 35, 2007 WL 3227685.
attempted to sit down in a pool-side chair. As he
The court also held that the expert's affidavit was
lowered himself into the chair, the tip of
not conclusory and that it was sufficient evidence
Gillenwater's right ring finger was severed by what
to preclude summary judgment. Id. at 39.
Gillenwater alleged to be a broken weld on the
chair's frame. Gillenwater filed a premises liability
Under Rule 193.6, discovery that is not timely
claim against Fort Brown. The parties entered into,
disclosed and witnesses that are not timely
and the trial court approved, an "Agreed Level III
identified are inadmissible as evidence. TEX.R.
Scheduling Order," which set August 19, 2005, as
CIV. P. 193.6(a). A party who fails to timely
the deadline for expert disclosure. See
designate an expert has the burden of establishing
good cause or a lack of unfair surprise or prejudice
[285 S.W.3d 881]
before the trial court may admit the evidence.
TEX.R. CIV. P. 193.6(b). "A trial court's exclusion
of an expert who has not been properly designated
Fort Brown Villas III Condo. v. Gillenwater, 285 S.W.3d 879 (Tex. 2009)

can be overturned only upon a finding of abuse of proceedings, United Blood Services v. Longoria,
discretion." Mentis v. Barnard, 870 S.W.2d 14, 16 938 S.W.2d 29, 30 (Tex.1995), we also hold that
(Tex.1994) (citing Morrow v. H.E.B., Inc., 714 the evidentiary exclusion under Rule 193.6 applies
S.W.2d 297, 298 (Tex. 1986)). Before the no- equally.
evidence motion for summary judgment was
introduced to Texas trial practice, courts did not Our conclusion is based on the changes made
apply evidentiary sanctions and exclusions for to the pretrial discovery rules and the introduction
failure to timely designate an expert witness in a of the no-evidence motion for summary judgment.
summary judgment proceeding. See, e.g., State v. The former pretrial discovery rules established a
Roberts, 882 S.W.2d 512, 514 (Tex.App.-Austin fluid deadline for discovery disclosure, which
1994, no writ) ("Discovery rules and sanctions for could be modified based on a change in the date of
failure to designate expert witnesses do not apply trial. Ersek, 69 S.W.3d at 272. Thus, it was possible
to summary judgment proceedings."); see also that an exclusionary rule based on an untimely
Purvis Oil Corp. v. Hillin, 890 S.W.2d 931, 939-40 disclosure used at the summary judgment stage
(Tex.App.-El Paso 1994, no writ); Gandara v. could exclude evidence that would later be
Novasad, 752 S.W.2d 740, 743 (Tex.App.-Corpus admissible at trial. Id. at 272-73. However, the new
Christi 1988, no writ). However, in 1997, the no- discovery rules establish a date certain for the
evidence summary judgment motion was completion of discovery, which depends on the
introduced to the Texas Rules of Civil Procedure as discovery plan level and not on the trial date. See
Rule 166a(i), 1 and in 1999, pretrial discovery rules id. at 273; see also TEX.R. CIV. P. 190.2-.4
were amended to include evidentiary exclusions (providing specific time periods for the end of
under Rule 193.6. Id. at § 193.6. 2 Since that time, discovery, depending on the discovery plan level).
most courts of appeals have applied Rule 193.6 to Under the new rules, there is no longer a concern
summary judgment proceedings. See Thompson v. that discovery will be incomplete at the summary
King, 2007 WL 1064078, *2 (Tex. App.-Tyler Apr. judgment stage. See Ersek, 69 S.W.3d at 273-74. In
11, 2007, pet denied) (mem.op.); Blake v. Dorado, fact, the no-evidence rule, by its very language, is
211 S.W.3d to be used following discovery. TEX.R. CIV. P.
166a(i) ("After adequate time for discovery, a
[285 S.W.3d 882] party without presenting summary judgment
evidence may move for summary judgment on the
429, 432 (Tex.App.-El Paso 2006, no pet.); Chau ground that there is no evidence ....") (emphasis
v. Riddle, 212 S.W.3d 699, 704-05 (Tex. App.- added). Combined with the no-evidence motion
Houston [1st Dist.] 2006), rev'd on other grounds, for summary judgment rule, the "hard deadline"
254 S.W.3d 453, 455 (Tex.2008); Cunningham v. established by the pretrial discovery rules ensures
Columbia/St. David's Healthcare Sys., L.P., 185 that the evidence presented at the summary
S.W.3d 7, 12-13 (Tex.App.-Austin 2006, no pet.); judgment stage and at the trial stage remains the
F.W. Indus., Inc. v. McKeehan, 198 S.W.3d 217, same. See id.; Tex.R. Civ. P. 190.3. Accordingly, the
221 (Tex.App.-Eastland 2005, no pet.); Villegas v. 193.6 exclusionary rule applies equally to both
Tex. Dep't. of Transp., 120 S.W.3d 26, 34-35 proceedings.
(Tex.App.-San Antonio 2003, pet. denied); Ersek
v. Davis & Davis, P.C., 69 S.W.3d 268, 274 Here, Gillenwater did not timely disclose his
(Tex.App.-Austin 2002, pet. denied). But see expert pursuant to the deadline provided for in the
Alaniz v. Hoyt, 105 S.W.3d 330, 340 (Tex.App.- agreed scheduling order and subsequent extension
Corpus Christi 2003, no pet.); Johnson v. Fuselier, agreements. The trial court struck the expert's
83 S.W.3d 892, 897-98 (Tex.App.-Texarkana affidavit and did not consider it in granting the
2002, no pet.) (both declining to apply Rule 193.6 summary judgment. 286 S.W.3d at 38. Because
to a summary judgment proceeding). Because we Rule 193.6 provides for the exclusion of an
have already held that evidentiary rules apply untimely expert affidavit, we hold that the trial
equally in trial and summary judgment court did not abuse its discretion in striking it.3 We
Fort Brown Villas III Condo. v. Gillenwater, 285 S.W.3d 879 (Tex. 2009)

also hold that Gillenwater failed to satisfy his ▸ Collins has an associate's degree in welding;
burden of establishing good cause or a lack of
unfair surprise or prejudice against Fort Brown. ▸ Collins knew the combination of chlorine
See TEX.R. CIV. P. 193.6(b). Gillenwater did not and salt water in the air had a corrosive effect on
designate its expert until three days before the end metal chairs by the pool; and
of discovery and more than five months after the
expert designation deadline. ▸ Collins had an employee inspect, wash, and
clean all the outdoor lounge chairs by the pool
[285 S.W.3d 883] (including the chair at issue) six days a week.

Having held that the expert's affidavit was • Collins and Gillenwater inspected the chair
properly excluded, we must review the remaining the day after the injury. The broken weld was
evidence to determine whether the trial court visible to both men and was on the same side of the
appropriately granted Fort Brown's motion for chair where Gillenwater had placed his hand. After
summary judgment. As an invitee, Gillenwater the incident, Collins inspected the other chairs by
must prove, under his premises liability claim, that the pool and found "hairline cracks" in those
(1) a condition of the premises created an chairs, which he subsequently repaired or
unreasonable risk of harm to the invitee; (2) the replaced.
owner knew or reasonably should have known of
the condition; (3) the owner failed to exercise Gillenwater argues that this evidence proves
ordinary care to protect the invitee from danger; the broken welds were easily visible to the naked
and (4) the owner's failure was a proximate cause eye prior to the accident. We disagree. Instead, it
of injury to the invitee. State Dep't of Highways & only establishes that the chairs were inspected
Public Transp. v. Payne, 838 S.W.2d 235, 237 regularly because of the awareness of possible
(Tex.1992). Fort Brown argues there is no evidence corrosion, that Gillenwater was injured, and that
that Fort Brown had actual or constructive Collins firstbecame aware of the injury and the
knowledge of the chair's condition. We agree. chair's condition the day after the injury occurred.
Other than expert evidence, Gillenwater offers the This evidence has no bearing on whether broken
following evidence in support of the knowledge welds was visible prior to the injury. Gillenwater
element: also argues it is reasonable to infer the dangerous
condition was present and seen by employees
• Gillenwater's unchallenged explanation of when the chairs were washed because "common
the how the occurrence happened (by lowering sense dictates that the hairline cracks and broken
himself into the chair while grabbing the sides). rungs visible on the chair at issue and the other
Gillenwater argues this allows an inference that chairs surrounding the pool did not occur over
the chair was already broken. night." But this conclusion is precluded by our
holding in CMH Homes, Inc. v. Daenen, 15 S.W.3d
• Photographs of the chair taken by an 97 (Tex.2000). In CMH Homes, Daenen was
insurance adjuster after the injury. injured when he stepped off a truck onto an
unstable loading platform, while carrying a heavy
• A deposition from Frank Collins, the load. Id. at 98. Evidence showed that CMH had
condominium manager, testifying that: previously replaced the platform and steps a
number of times after discovering that they had
▸ It was the condominium's responsibility to become unstable. Id. at 99. We held that the
maintain the outdoor lawn equipment in a safe evidence was legally insufficient to prove that
condition; CMH had actual or constructive notice of the risk
of the shaky platform, noting that "an owner or
▸ Collins first became aware of the injury the occupier is not liable for deterioration of
day after the incident;
Fort Brown Villas III Condo. v. Gillenwater, 285 S.W.3d 879 (Tex. 2009)

[285 S.W.3d 884] ---------------

its premises unless it knew of or by reasonable Notes:
inspection would have discovered the
deterioration." Id. at 101-03. We acknowledged 1. TEX.R. CIV. P. 166a (1949, amended 1997).
that "Daenen would be entitled to recover if he
2. TEX.R. CIV. P. 193.6 (1998).
presented evidence that CMH actually knew that
the platform and step unit had become unstable or 3. Because the expert's affidavit is inadmissible on
if a reasonable inspection would have revealed that this point, we need not consider whether the
the unit was no longer safe." Id. at 102. As to the affidavit was conclusory.
type of evidence necessary to demonstrate a
reasonable inspection that would have revealed ---------------
the danger, we explained:

[T]here was no evidence or even contention
that CMH had failed to inspect as frequently as it
reasonably should. Similarly, there is no evidence
that the instability in the step and platform unit
had existed for a sufficient time that CMH had
constructive notice of the unreasonable risk of
harm.

Id. Here, no evidence was presented that Fort
Brown actually knew the chair had become
dangerous or that Fort Brown failed to reasonably
inspect the chairs. The record demonstrates that
Fort Brown inspected and washed the chairs six
days a week out of concern for the corrosive effect
of the pool chlorine and salt water in the air.
Gillenwater also offered no evidence that the
broken welds existed on the chair for any length of
time prior to the accident. The fact that
Gillenwater's fingertip was severed and that the
chair broke is evidence that a dangerous condition
existed, but it offers no evidence as to how long it
existed. The only possible evidence that a broken
weld existed in the chair for any length of time is
Collins' testimony that he repaired other chairs
with hairline cracks after the accident. But not only
does a hairline crack not present the same degree
of danger as a broken weld, this argument
addresses knowledge of other chairs, not the one
that actually broke. Therefore, we reverse the court
of appeals' judgment and render a take -nothing
judgment in favor of Fort Brown.

Justice JOHNSON did not participate in the
decision.
Total Clean Llc v. Cox Smith Matthews Inc. F/K/A Cox & Smith Inc., 330 S.W.3d 657 (Tex.
App. 2010)

330 S.W.3d 657 (“Nalco”). Unsatisfied with the work done by
Nalco, Total Clean sued Nalco and sought to
TOTAL CLEAN, LLC, Appellant, recover itslost profits from the venture. Total
v. Clean hired Jon Powell as its attorney. Powell
COX SMITH MATTHEWS recommended Total Clean hire Renee McElhaney
INCORPORATED f/k/a Cox & Smith and Cox Smith Matthews Incorporated (“Cox
Incorporated and Renee F. McElhaney, Smith”) to serve as co-counsel. A jury trial was set
Appellees. to commence on September 29, 2003, in federal
court before United States District Judge Royal
No. 04–09–00392–CV. Furgeson. In pretrial filings, Total Clean's
attorneys estimated trial would take from two to
Court of Appeals of Texas, San Antonio. four weeks.

Oct. 20, 2010.Rehearing Overruled Dec. Shortly before the trial date, McElhaney
14, 2010. attended an Inns of Court 1 meeting, which

[330 S.W.3d 659] [330 S.W.3d 660]

Ryan G. Anderson, McClenahan, Anderson & was also attended by Judge Furgeson. According to
Styker, PLLC, San Antonio, TX, Steven M. Smoot, McElhaney, she had a brief conversation with the
Smoot Law Firm, P.C., Houston, TX, William J. judge, during which he told her the parties would
Skepnek, Skepnek Fagan Meyer & Davis, P.A., have only five days to try the case. As she left the
Lawrence, KS, for Appellant.Casey L. Dobson, Inns of Court meeting, McElhaney called Powell
Scott Douglass & McConnico, L.L.P., Austin, TX, and relayed the comment to him. The next day,
for Appellee.Sitting: CATHERINE STONE, McElhaney met with Powell and Robert Nami, Sr.,
Chief Justice, SANDEE BRYAN MARION, and reported the conversation to them. The
Justice, STEVEN C. HILBIG, Justice. litigants eventually settled the case for $4.5
million. The settlement proceeds allowed Total
OPINION
Clean to pay its attorney's fees, recoup its initial
Opinion by: STEVEN C. HILBIG, Justice.
investment of approximately $2.378 million, and
recover approximately $357,000, the amount it
Total Clean, LLC appeals the summary
was seeking from Nalco for past lost profits.
judgment rendered in favor of Cox Smith
Matthews Incorporated and Renee McElhaney.
The Namis later came to believe that Judge
We affirm the take-nothing judgment on Total Furgeson had not told McElhaney he would limit
Clean's negligence, negligent misrepresentation,
trial to only five days, and that McElhaney had lied
and fraud claims because Total Clean faile dto
in order to induce the Nami family to settle the
present any evidence of actual damages in case. Total Clean sued McElhaney and Cox Smith
response to the motion for summary judgment.
for breach of fiduciary duty, fraud, negligence
However, we reverse the judgment on Total
(legal malpractice), and negligent
Clean's breach of fiduciary duty claim. misrepresentation. McElhaney and Cox Smith
(hereinafter, collectively, “appellees”) filed a
Background
combined motion for traditional summary
judgment and a no-evidence summary judgment,
The Nami family formed Total Clean in 2000
asserting (1) there is no evidence McElhaney lied
for the purpose of constructing and operating an
when she told Nami that Judge Furgeson told her
automated commercial truck wash in San Antonio.
the parties would be limited to five days to try the
To that end, Total Clean entered into a contract to
Nalco lawsuit; (2) Total Clean's claim for actual
purchase a truck wash system from ONDEO Nalco
damages is not supported by competent evidence;
Total Clean Llc v. Cox Smith Matthews Inc. F/K/A Cox & Smith Inc., 330 S.W.3d 657 (Tex.
App. 2010)

and (3) there is no evidence of the standard of care, McElhaney did not truthfully relate her
breach, or causation because Total Clean failed to conversation with Judge
designate liability experts. Total Clean responded,
and appellees later filed objections to Total Clean's [330 S.W.3d 661]
summary judgment evidence. After a hearing, the
trial court sustained appellees' evidentiary Furgeson to the Namis. Instead, Total Clean relies
objections and granted their motion for summary on Judge Furgeson's deposition testimony,
judgment. Total Clean appeals. including the testimony of his habits and general
practices, and the pretrial proceedings in the Nalco
Evidence of Conversation with the Judge suit. Total Clean argues the equal inference rule
does not apply and the trial court erred in granting
All of Total Clean's causes of action are summary judgment on this ground because the
premised on the contention that Judge Furgeson record as a whole contains sufficient
did not tell McElhaney the parties would be limited circumstantial evidence to enable a reasonable
to five days to try the case. Appellees moved for juror to infer that the alleged conversation in
summary judgment on the ground there was no which Judge Furgeson told McElhaney he would
evidence McElhaney lied to the Namis about her limit trial time did not occur. We agree with Total
conversation with Judge Furgeson. To defeat the Clean.
no-evidence motion for summary judgment, Total
Clean was required to bring forth more than a Judge Furgeson was asked at his August 2008
scintilla of probative evidence to raise a genuine deposition whether he could recall “deciding or
issue of material fact. See Reynosa v. Huff, 21 entering an order or telling the lawyers in this case
S.W.3d 510, 512 (Tex.App.-San Antonio 2000, no that [he] was going to limit them to five days of
pet.). More than a scintilla of evidence exists when trial.” The judge responded “I just don't have any
the evidence rises to a level that enables reasonable recollection about that one way or another. I
and fair-minded people to differ in their don't—I just don't recall.” Later, when asked more
conclusions. Id. Less than a scintilla of evidence specifically if he remembered telling McElhaney he
exists when the evidence is “so weak as to do no was going to limit the trial to five days, he stated:
more than create a mere surmise or suspicion” of a “I don't have any recollection of having a
fact. Id. In deciding whether the summary discussion with Ms. McElhaney about the trial
judgment evidence raises a genuine issue of date. I just have no recollection. I'm not saying I—
material fact, we review the entire record in the it is possible that I had a discussion with her, but I
light most favorable to the respondent. King have no recollection of it.”
Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750
(Tex.2003). We view as true all evidence favorable Appellees assert this testimony amounts to
to the respondent and indulge every reasonable nothing more than meager circumstantial
inference and resolve all doubts in its favor. evidence that would require the jury to improperly
Gonzales v. O'Brien, 305 S.W.3d 186, 189 pick between two reasonable but equally probable
(Tex.App.-San Antonio 2009, no pet.); Kelly v. inferences: that Judge Furgeson made the alleged
Brown, 260 S.W.3d 212, 216 (Tex.App.-Dallas statement to McElhaney but he could not recall
2008, pet. denied). doing so or that he did not make the statement. See
Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d
Appellees contend the trial court correctly 387, 392 (Tex.1997) (when circumstances are
applied the equal inference rule to grant summary consistent with either of two facts and nothing
judgment on this ground because it is equally shows that one is more probable than the other,
consistent to infer from the evidence that the neither fact can be inferred). This argument
conversation occurred as McElhaney reported it or ignores the rest of the summary judgment record.
that it did not. Total Clean acknowledges there is
no direct evidence supporting its contention that
Total Clean Llc v. Cox Smith Matthews Inc. F/K/A Cox & Smith Inc., 330 S.W.3d 657 (Tex.
App. 2010)

Total Clean filed the record of a June 2003 And I think—as far as I can remember, that's
pretrial hearing held in the Nalco case. At that the—you know, I've tried lots of cases over the last
hearing, the attorneys told Judge Furgeson the 15 years. I think that's the only time I started with
case would take up to three weeks to try. The judge a clock.
set the trial for September 29, 2003. Judge
Furgeson told the lawyers that due to the He also testified that he imposed a time limit
anticipated length of the trial, they would probably only after working with both sides in the lawsuit:
select eight to ten jurors to allow for the loss of
jurors due to illness or other reasons. Judge Q. Judge in that case [where a time limit was
Furgeson did not give counsel any indication that imposed before trial] you didn't, in that case you
the anticipated trial length presented any worked with both lawyers on this clock issue,
difficulties or that he intended to limit the trial. correct?

The parties questioned Judge Furgeson at A. Correct.
length during his deposition about his habits and
practices in conducting trials and interacting with Q. So you didn't call up one or the other of
attorneys. When asked whether he recalled setting them and say, “I'm going to hold your side,” or,
a limitation on the time of trial inthis case, the “I'm going to hold the case to this much time” and
judge responded “I don't recall doing it in this case. then not call the other side?
I normally don't set any limitations.” When asked
A. Correct.
if it was his practice to tell the lawyers before trial
he would limit them to a shorter time than
Q. I mean, your—your practice would be when
requested, Judge Furgeson stated:
talking about cases to talk about them in front of
both lawyers at the same time?
It isimportant that parties have their day in
court. And so I just make it a practice to work with
A. Correct. That—that is certainly my practice
the lawyers. I like lawyers. I respect lawyers. There
and goal.
are good lawyers practicing in my court, and my —
my habit is not to be authoritarian with lawyers.
Judge Furgeson was also asked if it would be
unusual for him to talk about a case with only one
When asked if he ever sent a letter to the
lawyer present. The judge answered by describing
parties before trial and arbitrarily limited the time
his involvement in bar activities as a way of
of trial, Judge Furgeson stated:
interacting with attorneys. He went on to state:
Well, let's say—you know, people never like to
I might make a careless statement about a
say never, and—and I may have in an instance or
case. It's absolutely not my practice to do that, but,
two limited lawyers. I can't recall when I've done it,
you know, I am human and I might make a
but I may have done it a time or two. It's not my
mistake. But my—my goal is to try to avoid talking
general practice. My view is that the courtroom is
to lawyers under any circumstance about a
where the ultimate justice
pending case. That's my goal.
[330 S.W.3d 662]
A fair reading of Judge Furgeson's testimony
is that it is his practice or habit not to talk with
is done, and we have to work together to make sure
lawyers about pending cases in social settings and
both sides get heard fairly.
not to have a substantive conversation about a
Judge Furgeson testified that he could recall pending case with only one side. It is also his
setting a time limit before trial only once: practice or habit not to limit the time allotted for
the trial of a case, and in the one instance the judge
Total Clean Llc v. Cox Smith Matthews Inc. F/K/A Cox & Smith Inc., 330 S.W.3d 657 (Tex.
App. 2010)

had imposed a time limit before trial,he spoke have recovered had the Nalco suit been tried
with both sides before doing so. The Texas Rules of cannot be proven with competent evidence to a
Evidence provide that “[e]vidence of the habit of a reasonable certainty. Alternatively, they argued
person or of the routine practice of an Total Clean had no evidence of lost profits.
organization, whether corroborated or not and
regardless of the presence of eyewitnesses, is Applicable law
relevant to prove that the conduct of the person or
organization on a particular occasion was in “Lost profits are damages for the loss of net
conformity with the habit or routine practice.” income to a business measured by reasonable
Tex.R. Evid. 406 (emphasis added). Relevant certainty.” Miga v. Jensen, 96 S.W.3d 207, 213
evidence is “[e]vidence having any tendency to (Tex.2002). Recovery of lost profits does not
make the existence of any fact that is of require that the loss be susceptible to exact
consequence to the determination of the action calculation. Tex. Instruments, Inc. v. Teletron
more probable or less probable than it would Energy Mgmt., Inc., 877 S.W.2d 276, 279
without the evidence.” Tex.R. Evid. 401. (Tex.1994). However, the loss must not be
speculative:
In the summary judgment context, we must
take as true Judge Furgeson's testimony about his Profits which are largely speculative, as from
habits and practices. The judge's testimony that it an activity dependent on uncertain or changing
is his habit or practice not to limit the time to try a market conditions, or on chancy business
case, not to engage in substantive conversations opportunities, or on promotion of untested
about a case with only one side, and not to discuss products or entry into unknown or unviable
pending cases in social settings, is evidence markets, or on the success of a new and unproven
tending to make it less probable the purported enterprise, cannot be recovered. Factors like these
conversation with McElhaney occurred. See Acker and others which make a business venture risky in
v. Texas Water Comm'n, 790 S.W.2d 299, 302 prospect preclude recovery of lost profits in
(Tex.1990) (holding commissioners' testimony retrospect.
they did not recall having conversation outside of
hearing and that it

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