Preview
Filed: 2/9/2023 3:40 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 72622406
By: Sandra Orizaga
2/9/2023 4:20 PM
CAUSE NO. 19-CV-0258
HOMEOWNERS OF AMERICA § IN THE DISTRICT COURT OF
INSURANCE COMPANY, §
Plaintiff, §
v. § 56TH JUDICIAL DISTRICT
§
EMILIO MENCHACA, §
Defendant. § GALVESTON COUNTY, TEXAS
PLAINTIFF HOMEOWNERS OF AMERICA INSURANCE COMPANY’S
RESPONSE TO DEFENDANT’S MOTION TO EXCLUDE EXPERT WITNESSES AND
PLAINTIFF’S MOTION TO EXCLUDE DEFENDANT’S UNDISCLOSED WITNESSES
AND EVIDENCE
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff HOMEOWNERS OF AMERICA (“HOAIC”) files and serves upon Defendant
EMILIO MENCHACA (“Menchaca” and/or “Defendant”) its Response to Defendant’s Motion to
Exclude Plaintiff’s Expert Witnesses and its Motion to Exclude Defendant’s Undisclosed Witness
and Evidence of Damages, respectfully showing the Court the following:
1. Continuing the pre-trial flurry of motions practice days out from trial,1 Defendant now
seeks to strike HOAIC’s designated expert witnesses. 2 Defendant’s arguments are
premised on noncompliance with the TEX. R. CIV. P. on disclosures and an alleged failure
to comply with the Court’s May 21, 2019 Discovery and Docket Control Order. The Court
should see this for exactly what it is – a last-minute attempt to intrude into trial preparation
and allege more discovery is needed (thus, continuance), 3 all at the expense of Defendant
Menchaca’s fee exposure.
1
Candidly, reinforcing HOAIC’s sought fees under the Texas Declaratory Judgment Act and putting Defendant
personally at increasing exposure to those fees.
2
In this motion, as distinguished from prior, Defendant at least acknowledges that they actually did receive discovery
from Plaintiff – the August 3, 2020 designation by HOAIC of its experts.
3
It is noteworthy that, on November 28, 2022 (well after the DCO discovery period), Defendant filed for a trial
continuance. Therein, one of Defendant’s bases for same was to “allow the parties to complete the necessary
DEFENDANT HOMEOWNERS OF AMERICA INSURANCE COMPANY’S COMBINED RESPONSE – Page 1 of 9
CAUSE NO: 19-CV-0258
CLAIM NO.: 201708270103
A. HOAIC’s Motion to Exclude Undisclosed Evidence and Witnesses.
2. As an initial matter and related to HOAIC’s relief sought herein, HOAIC twice specifically
requested Defendant make TEX. R. CIV. P. 194 4 disclosures. Defendant never did so . . . no
disclosure of experts, of witnesses, or of the damages claimed – nothing. 5 And, relevant to
Defendant’s sought relief herein, Defendant never made, under the then operative TEX. R.
CIV. P. 194, disclosure requests to HOAIC. Id.
3. Under the rule prior to January 1, 2021, under TEX. R. CIV. P. 194.3, the responding party
must serve a written response within 30 days. According to comment 1, if a party does not
move for protection or assert any applicable privileges, failure to “respond fully to a request
for disclosure would be an abuse of the discovery process.” See generally Specialty
Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.] 2000, pet.
denied) (noting that the comment to TEX. R. CIV. P. 166a(i) was specifically intended to
inform the construction and application of the rule on experts); Villegas v. Texas Dept. of
Transp., 120 S.W.3d 26, 35 (Tex. App.—San Antonio 2003, pet. denied) (failure to provide
disclosure as requested under Rule 194.2(f)(4)(A) constituted grounds supporting a
sanction order striking the affidavit of an expert in a summary judgment proceeding). It is
more than Defendant’s expert, though. He also failed to disclose his damages or any other
witnesses (including for the fees Defendant argued so vociferously about in summary
judgment motions practice).
4. More important here, TEX. R. CIV. P. 193.6 provides:
discovery.” Respectfully, that discovery was beyond the DCO deadline Defendant points to . . . and he did not do any
discovery in the interim anyway. See affidavit filed herewith.
4
HOAIC’s May 16, 2019 Response to Defendant’s Counterclaim, at ¶ 42; HOAIC’s May 17, 2019 First Amended
Petition for Declaratory Judgment, at ¶ 42.
5
See affidavit filed herewith.
DEFENDANT HOMEOWNERS OF AMERICA INSURANCE COMPANY’S COMBINED RESPONSE – Page 2 of 9
CAUSE NO: 19-CV-0258
CLAIM NO.: 201708270103
(a) Exclusion of Evidence and Exceptions. A party who fails to make, amend, or
supplement a discovery response in a timely manner may not introduce in
evidence the material or information that was not timely disclosed, or offer the
testimony of a witness (other than a named party) who was not timely identified,
unless the court finds that: (1) there was good cause for the failure to timely,
make, amend, or supplement the discovery response; or (2) the failure to timely
make, amend, or supplement the discovery response will not unfairly surprise
or unfairly prejudice the other parties.
(a) Burden of establishing exception. The burden of establishing good cause or
the lack of unfair surprise or unfair prejudice is on the party seeking to introduce
the evidence or call the witness. A finding of good cause or of the lack of unfair
surprise or unfair prejudice must be supported by the record.
Mr. Menchaca, as the party attempting to offer undisclosed evidence, has the burden to
establish good cause or lack of surprise, which must be supported by the record. TEX. R.
CIV. P. 193.6(b); see also Williams v. County of Dallas, 194 S.W.3d 29, 32 (Tex. App.—
Dallas 2006, pet. denied); Norfolk S. Ry. Co. v. Bailey, 92 S.W.3d 577, 581 (Tex. App.—
Austin 2002, no pet.). Rule 193.6(a) is mandatory, and the penalty—exclusion of
evidence—is automatic, absent a showing of (i) good cause, (ii) lack of unfair surprise
or (iii) lack of unfair prejudice. Lopez v. La Madeleine of Tex., Inc., 200 S.W.3d 854,
860 (Tex. App.—Dallas 2006, no pet.); Harris Cnty. v. Inter Nos, Ltd., 199 S.W.3d 363,
368 (Tex. App.—Houston [1st Dist.] 2006, no pet.). The purpose behind this rule and its
accompanying sanction is to prevent trial by ambush. See Aetna Cas. & Sur. Co. v.
Specia, 849 S.W.2d 805, 807 (Tex. 1993) (applying former Rule 215(5)); see also Harris
County, 199 S.W.3d at 368.
5. In short, Defendant’s failure to respond to HOAIC’s two disclosure requests results in the
mandatory exclusion of: (1) any expert (on damages, the concurrent cause of his flood
damage, the amount of his loss as HOAIC estimated in the first place); (2) any witness,
other than Mr. Menchaca himself; and (3) any actual damages (as distinguished from the
attorney’s fees addressed below, which are not damages) calculations not disclosed.
DEFENDANT HOMEOWNERS OF AMERICA INSURANCE COMPANY’S COMBINED RESPONSE – Page 3 of 9
CAUSE NO: 19-CV-0258
CLAIM NO.: 201708270103
Intending to address this in limine, Defendant’s newest motion warrants HOAIC’s motion
now – requesting the Court exclude Defendant’s undisclosed witnesses (inclusive of
experts) as well as undisclosed damages.
B. HOAIC’s Response to Defendant’s Motion to Exclude Plaintiff’s Experts.
6. Off the bat, it is disingenuous for Defendant to claim he “cannot reasonably prepare for cross-
examination” and has been “significant[ly] surprise[d, creating] undue prejudice to” him.
Defendant was served with Plaintiff’s expert disclosures, as he admits, on August 3, 2020 –
well in advance of the trial setting in November 2020. A couple of points here.
7. First, as stated above, Defendant made no disclosure request to HOAIC – as contrasted with
Defendant’s arguments recently about HOAIC’s alleged “failure to make required
disclosure.” HOAIC was under no TRCP obligation, independent of this Court’s DCO
(subsequently superseded) for a November 2020 trial, to disclose anything Defendant did not
request. But HOAIC did it anyway . . . on the August 3, 2020 “all OTHER PARTIES”
deadline 6 in the Court’s May 21, 2019 Discovery and Docket Control Order. It is hard to
fathom how, years later, that one-month delay was prejudicial, or Defendant was somehow
precluded from expert discovery. Not once did Defendant request the depositions of anybody
and, as admitted in his recent continuance heard Monday, conducted no discovery at all.
8. Second, and related to Defendant’s failure to request disclosures, Defendant gleeful
recitation of the law and TEX. R. CIV. P. 194 is misplaced. Again, Defendant never made
Rule 194 requests to HOAIC. Going further, in another example of Defendant being hoisted
by his own petard, this Policy (in the “Suit Against Us” clause) mandates Defendant abate
6
Once again, note the contrast. Defendant seeks realignment of the parties because it is atypical in first-party cases
that the carrier is the defendant. Now, because HOAIC designated on the date a month later (typical for defendant
carriers), Defendant argues against that very confusion on party status.
DEFENDANT HOMEOWNERS OF AMERICA INSURANCE COMPANY’S COMBINED RESPONSE – Page 4 of 9
CAUSE NO: 19-CV-0258
CLAIM NO.: 201708270103
until appraisal (among other things) is complete – and that award did not issue until June 1,
2021. And, yet HOAIC still designated experts (including its designated appraiser,
defensively) nearly a year earlier. So, to the extent Defendant insists a month’s worth of
alleged DCO noncompliance 7 warrants the striking of Plaintiff’s expert in defense, he is, yet
again, breaching his Policy, causing the very prejudice which precludes his recovery
thereunder, and increasing HOAIC attorney’s fees it seeks herein.
9. Third, Defendant points to the nondisclosure of expert reports with opinions as noncompliant
with the Court’s DCO. Once again, that June 1, 2021 appraisal award, with Nick Baggett
serving as HOAIC’s appraiser since his designation on September 6, 2018, is his report. And,
as the Court is well-aware, that report is within the record since HOAIC’s July 22, 2021
Motion for Summary Judgment on it. As a side comment, Defendant would, by delaying that
appraisal for nearly three-years and making counterclaims without meeting the appraisal
condition precedent, now attempt to use this Court’s DCO to strike the appraiser (where
Defendant contractually agreed to abate his counterclaims, and for which Nick Baggett was
engaged, until that appraisal award). Once again, this is the delay, obstruction and prejudice
for which HOAIC sued in the first place and for which it justifiably seeks its fee recovery
herein.
10. Fourth, as the Court’s docket reflects, the Court’s May 21, 2019 Discovery and Docket
Control Order was for a November 2, 2020 bench trial – which was cancelled on HOAIC’s
request for jury on August 17, 2020. Thereafter, on March 31, 2022 and after the COVID
7
HOAIC fully recognizes this Court’s inherent authority and discretion to control its docket and issue scheduling
orders. The timing problem, however, comes in when considering Defendant’s Policy, his premature counterclaims
against HOAIC, and then his violation of the former even more by not abating his counterclaims until that compliance.
Said another way, the Court’s DCO (before appraisal award issued), to the extent Defendant uses it here as a sword,
cut Defendant.
DEFENDANT HOMEOWNERS OF AMERICA INSURANCE COMPANY’S COMBINED RESPONSE – Page 5 of 9
CAUSE NO: 19-CV-0258
CLAIM NO.: 201708270103
pandemic-related delay, the Court issued another Discovery and Docket Control Order – for
a December 5, 2022 trial date (which, as the Court may recall, Defendant scrambled at the
last-minute to get continued). So, according to Defendant, HOAIC’s August 3, 2020
designation of experts is somehow untimely to Defendant’s prejudice. This argument ignores
that HOAIC’s disclosure was before the appraisal award condition precedent to resolve
Defendant’s counterclaim’s amount-of-loss was met (where the Policy mandates abatement
until compliance). It also ignores the reality of a February 13, 2023 trial setting,– where
Baggett is a defensive expert, and the award did not issue until after that first bench trial
setting.
11. Fifth and finally, to the extent good cause need be shown, 8 of the three experts designated in
2020, Nick Baggett (the appraiser) was (and is) designated in defense against Defendant’s
counterclaims – that is, “OTHER PARTIES” with HOAIC as the counter-defendant . . .
within the DCO deadline. However, his expert report, because of Defendant’s delay in
appraisal (not designating a “qualified” appraiser timely and otherwise), could not be
disclosed under the Court’s DCO because appraisal did not conclude until June 1, 2021.
Defendant thereafter, despite HOAIC’s designation of him nearly a year earlier, never sought
his deposition to explain the resultant (and binding as to amount of, as opposed to covered,
damage) award.
12. As to the designations of counsel for their respective testimony on fees, again, Defendant
made no disclosure request, served no written discovery or sought depositions of HOAIC’s
counsel for their expert opinions of their fees incurred herein. That aside, a strike of the
undersigned counsel is nonsensical for three, additional reasons. First, counsel have,
8
See affidavit filed herewith.
DEFENDANT HOMEOWNERS OF AMERICA INSURANCE COMPANY’S COMBINED RESPONSE – Page 6 of 9
CAUSE NO: 19-CV-0258
CLAIM NO.: 201708270103
respectfully and in conjunction with their summary judgment practice, already filed fee
affidavits up to the dates of those filings 9 – with those numbers continuing up as Defendant
proceeds unreasonably. Defendant made not objections then to any fees affidavit, which is
waiver on its face and as a matter of law . . . and Defendant still sought no discovery. Second,
as HOAIC as repeatedly stated, the costs and fees recoverable under the Texas Declaratory
Judgment Act are discretionary – “as are equitable and just.” TEX. CIV. PRAC. REM. CODE, §
37.009. Third, Defendant cannot possibly argue, and HOAIC refutes it by the Court’s record
– showing good cause, that attorney’s fees expert were unanticipated and, at this point,
prejudicial and a “significant surprise.” “This is all about fees” was Defendant’s mantra
against HOAIC in multiple summary judgment motions before this Court – most recently in
their own summary judgment motion. Since HOAIC sued in February 2019, asserting fee
recovery, this expert for fees issue has been front-and-center for Defendant and his counsel
and, since the designations in August 2020, they have done nothing to discover anything.
Stated another way, HOAIC easily meets its TEX. R. CIV. P. 193.6(b) burden to show “lack
of unfair surprise or unfair prejudice” on the record already before the Court.
13. So, setting aside the Court’s duty (independent of any alleged expert disclosure malfeasance)
to make that inquiry itself for what “equitable and just” fees on these facts, this Court can
take judicial notice that designations of fee experts years ago (without Defendant seeking
any discovery) does not significantly prejudice Defendant’s ability to cross examine. What
Defendant’s motion does is inform/reinforce the bases on which that discretion should be
exercised here to grant HOAIC “equitable and just” fees, in light of the facts presented. The
9
Supplemental disclosure by HOAIC to a request for disclosures Defendant never made, as specified by TEX. R. CIV.
P. 193.6. Again, good cause is shown by the time in which those affidavits have been in the Court’s record – such that
lack of unfair surprise in the intervening years is patent within that record. See affidavit filed herewith.
DEFENDANT HOMEOWNERS OF AMERICA INSURANCE COMPANY’S COMBINED RESPONSE – Page 7 of 9
CAUSE NO: 19-CV-0258
CLAIM NO.: 201708270103
expert opinion of HOAIC’s counsel, that Defendant “did this” and caused HOAIC’s
prejudice and fees through noncompliance, is repeated throughout the Court’s record and
continuing – both before any DCO deadline or appraisal award and after.
PRAYER
WHEREFORE, Plaintiff Homeowners of America Insurance Company prays that the
Court: (1) grant its Motion to Exclude as related experts, witnesses, and damages for which
Defendant failed, despite two requests, to make disclosures; and (2) deny Defendant’s Motion to
Exclude HOAIC’s expert witnesses, on any of the following premises: (a) a superseding DCO
where the prior DCO was for a 2020 trial; (b) a counter-defendant designation of Nick Baggett,
whose report is the award in the record; (3) Plaintiff’s designation of fee experts, on claims evident
from the initial petition through summary judgments (including Defendant’s), where Defendant
requested no discovery on anything and Plaintiff’s fee experts’ opinions are clear, or, alternatively,
good cause is shown on the record that an August 3, 2020 designation of fee experts without reports
and unrequested disclosures, is not unfair surprise or prejudice to Defendant.
Plaintiff Homeowners of America Insurance Company finally prays that it be granted such
other and further relief to which Plaintiff may show itself justly entitled, both in law and at equity.
Respectfully submitted,
/s/ Esther A. Grossman
ESTHER A. GROSSMAN
egrossman@hoaic.com
State Bar No.: 24010077
General Counsel for Homeowners of
America Insurance Company
1400 Corporate Drive – Suite 300
Irving, Texas 75038
972-607-4241 x4233 phone
972-573-2602 facsimile
DEFENDANT HOMEOWNERS OF AMERICA INSURANCE COMPANY’S COMBINED RESPONSE – Page 8 of 9
CAUSE NO: 19-CV-0258
CLAIM NO.: 201708270103
ATTORNEY FOR DEFENDANT
HOMEOWNERS OF AMERICA
INSURANCE COMPANY
AND
THE MONSON LAW FIRM, LLC
By: /s/ Ronald L. Hornback
Ronald L. Hornback
State Bar No. 24059257
Ronald@monsonfirm.com
Matthew D. Monson
Texas Bar No. 24056797
Matthew@monsonfirm.com
900 Rockmead Drive, Suite 141
Kingwood, Texas 77339
Telephone: 281-612-1920
Facsimile: 281-612-1971
OF COUNSEL
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument have been served upon
all counsel of record electronically and/or by e-service, email, regular or certified mail, return
receipt requested, facsimile and/or hand delivery on the 9th day of February 2023.
/s/ Ronald L. Hornback
Ronald L. Hornback
DEFENDANT HOMEOWNERS OF AMERICA INSURANCE COMPANY’S COMBINED RESPONSE – Page 9 of 9
CAUSE NO: 19-CV-0258
CLAIM NO.: 201708270103
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Ronald Hornback on behalf of Ronald Hornback
Bar No. 24059257
ronald@monsonfirm.com
Envelope ID: 72622406
Status as of 2/9/2023 4:20 PM CST
Associated Case Party: Emilio Menchaca
Name BarNumber Email TimestampSubmitted Status
Jessica Salto jsalto@txattorneys.com 2/9/2023 3:40:59 PM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Ronald L.Hornback Ronald@monsonfirm.com 2/9/2023 3:40:59 PM SENT
Esther A.Grossman egrossman@hoaic.com 2/9/2023 3:40:59 PM SENT
Hilda Pavez hpavez@manuelsolis.com 2/9/2023 3:40:59 PM SENT
Associated Case Party: Homeowners of America Insurance Company
Name BarNumber Email TimestampSubmitted Status
Martha Spahr mspahr@hoaic.com 2/9/2023 3:40:59 PM SENT
Preview
Filed: 2/9/2023 3:40 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 72622406 By: Sandra Orizaga 2/9/2023 4:20 PM CAUSE NO. 19-CV-0258 HOMEOWNERS OF AMERICA § IN THE DISTRICT COURT OF INSURANCE COMPANY, § Plaintiff, § v. § 56TH JUDICIAL DISTRICT § EMILIO MENCHACA, § Defendant. § GALVESTON COUNTY, TEXAS PLAINTIFF HOMEOWNERS OF AMERICA INSURANCE COMPANY’S RESPONSE TO DEFENDANT’S MOTION TO EXCLUDE EXPERT WITNESSES AND PLAINTIFF’S MOTION TO EXCLUDE DEFENDANT’S UNDISCLOSED WITNESSES AND EVIDENCE TO THE HONORABLE JUDGE OF SAID COURT: Plaintiff HOMEOWNERS OF AMERICA (“HOAIC”) files and serves upon Defendant EMILIO MENCHACA (“Menchaca” and/or “Defendant”) its Response to Defendant’s Motion to Exclude Plaintiff’s Expert Witnesses and its Motion to Exclude Defendant’s Undisclosed Witness and Evidence of Damages, respectfully showing the Court the following: 1. Continuing the pre-trial flurry of motions practice days out from trial,1 Defendant now seeks to strike HOAIC’s designated expert witnesses. 2 Defendant’s arguments are premised on noncompliance with the TEX. R. CIV. P. on disclosures and an alleged failure to comply with the Court’s May 21, 2019 Discovery and Docket Control Order. The Court should see this for exactly what it is – a last-minute attempt to intrude into trial preparation and allege more discovery is needed (thus, continuance), 3 all at the expense of Defendant Menchaca’s fee exposure. 1 Candidly, reinforcing HOAIC’s sought fees under the Texas Declaratory Judgment Act and putting Defendant personally at increasing exposure to those fees. 2 In this motion, as distinguished from prior, Defendant at least acknowledges that they actually did receive discovery from Plaintiff – the August 3, 2020 designation by HOAIC of its experts. 3 It is noteworthy that, on November 28, 2022 (well after the DCO discovery period), Defendant filed for a trial continuance. Therein, one of Defendant’s bases for same was to “allow the parties to complete the necessary DEFENDANT HOMEOWNERS OF AMERICA INSURANCE COMPANY’S COMBINED RESPONSE – Page 1 of 9 CAUSE NO: 19-CV-0258 CLAIM NO.: 201708270103 A. HOAIC’s Motion to Exclude Undisclosed Evidence and Witnesses. 2. As an initial matter and related to HOAIC’s relief sought herein, HOAIC twice specifically requested Defendant make TEX. R. CIV. P. 194 4 disclosures. Defendant never did so . . . no disclosure of experts, of witnesses, or of the damages claimed – nothing. 5 And, relevant to Defendant’s sought relief herein, Defendant never made, under the then operative TEX. R. CIV. P. 194, disclosure requests to HOAIC. Id. 3. Under the rule prior to January 1, 2021, under TEX. R. CIV. P. 194.3, the responding party must serve a written response within 30 days. According to comment 1, if a party does not move for protection or assert any applicable privileges, failure to “respond fully to a request for disclosure would be an abuse of the discovery process.” See generally Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (noting that the comment to TEX. R. CIV. P. 166a(i) was specifically intended to inform the construction and application of the rule on experts); Villegas v. Texas Dept. of Transp., 120 S.W.3d 26, 35 (Tex. App.—San Antonio 2003, pet. denied) (failure to provide disclosure as requested under Rule 194.2(f)(4)(A) constituted grounds supporting a sanction order striking the affidavit of an expert in a summary judgment proceeding). It is more than Defendant’s expert, though. He also failed to disclose his damages or any other witnesses (including for the fees Defendant argued so vociferously about in summary judgment motions practice). 4. More important here, TEX. R. CIV. P. 193.6 provides: discovery.” Respectfully, that discovery was beyond the DCO deadline Defendant points to . . . and he did not do any discovery in the interim anyway. See affidavit filed herewith. 4 HOAIC’s May 16, 2019 Response to Defendant’s Counterclaim, at ¶ 42; HOAIC’s May 17, 2019 First Amended Petition for Declaratory Judgment, at ¶ 42. 5 See affidavit filed herewith. DEFENDANT HOMEOWNERS OF AMERICA INSURANCE COMPANY’S COMBINED RESPONSE – Page 2 of 9 CAUSE NO: 19-CV-0258 CLAIM NO.: 201708270103 (a) Exclusion of Evidence and Exceptions. A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness (other than a named party) who was not timely identified, unless the court finds that: (1) there was good cause for the failure to timely, make, amend, or supplement the discovery response; or (2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties. (a) Burden of establishing exception. The burden of establishing good cause or the lack of unfair surprise or unfair prejudice is on the party seeking to introduce the evidence or call the witness. A finding of good cause or of the lack of unfair surprise or unfair prejudice must be supported by the record. Mr. Menchaca, as the party attempting to offer undisclosed evidence, has the burden to establish good cause or lack of surprise, which must be supported by the record. TEX. R. CIV. P. 193.6(b); see also Williams v. County of Dallas, 194 S.W.3d 29, 32 (Tex. App.— Dallas 2006, pet. denied); Norfolk S. Ry. Co. v. Bailey, 92 S.W.3d 577, 581 (Tex. App.— Austin 2002, no pet.). Rule 193.6(a) is mandatory, and the penalty—exclusion of evidence—is automatic, absent a showing of (i) good cause, (ii) lack of unfair surprise or (iii) lack of unfair prejudice. Lopez v. La Madeleine of Tex., Inc., 200 S.W.3d 854, 860 (Tex. App.—Dallas 2006, no pet.); Harris Cnty. v. Inter Nos, Ltd., 199 S.W.3d 363, 368 (Tex. App.—Houston [1st Dist.] 2006, no pet.). The purpose behind this rule and its accompanying sanction is to prevent trial by ambush. See Aetna Cas. & Sur. Co. v. Specia, 849 S.W.2d 805, 807 (Tex. 1993) (applying former Rule 215(5)); see also Harris County, 199 S.W.3d at 368. 5. In short, Defendant’s failure to respond to HOAIC’s two disclosure requests results in the mandatory exclusion of: (1) any expert (on damages, the concurrent cause of his flood damage, the amount of his loss as HOAIC estimated in the first place); (2) any witness, other than Mr. Menchaca himself; and (3) any actual damages (as distinguished from the attorney’s fees addressed below, which are not damages) calculations not disclosed. DEFENDANT HOMEOWNERS OF AMERICA INSURANCE COMPANY’S COMBINED RESPONSE – Page 3 of 9 CAUSE NO: 19-CV-0258 CLAIM NO.: 201708270103 Intending to address this in limine, Defendant’s newest motion warrants HOAIC’s motion now – requesting the Court exclude Defendant’s undisclosed witnesses (inclusive of experts) as well as undisclosed damages. B. HOAIC’s Response to Defendant’s Motion to Exclude Plaintiff’s Experts. 6. Off the bat, it is disingenuous for Defendant to claim he “cannot reasonably prepare for cross- examination” and has been “significant[ly] surprise[d, creating] undue prejudice to” him. Defendant was served with Plaintiff’s expert disclosures, as he admits, on August 3, 2020 – well in advance of the trial setting in November 2020. A couple of points here. 7. First, as stated above, Defendant made no disclosure request to HOAIC – as contrasted with Defendant’s arguments recently about HOAIC’s alleged “failure to make required disclosure.” HOAIC was under no TRCP obligation, independent of this Court’s DCO (subsequently superseded) for a November 2020 trial, to disclose anything Defendant did not request. But HOAIC did it anyway . . . on the August 3, 2020 “all OTHER PARTIES” deadline 6 in the Court’s May 21, 2019 Discovery and Docket Control Order. It is hard to fathom how, years later, that one-month delay was prejudicial, or Defendant was somehow precluded from expert discovery. Not once did Defendant request the depositions of anybody and, as admitted in his recent continuance heard Monday, conducted no discovery at all. 8. Second, and related to Defendant’s failure to request disclosures, Defendant gleeful recitation of the law and TEX. R. CIV. P. 194 is misplaced. Again, Defendant never made Rule 194 requests to HOAIC. Going further, in another example of Defendant being hoisted by his own petard, this Policy (in the “Suit Against Us” clause) mandates Defendant abate 6 Once again, note the contrast. Defendant seeks realignment of the parties because it is atypical in first-party cases that the carrier is the defendant. Now, because HOAIC designated on the date a month later (typical for defendant carriers), Defendant argues against that very confusion on party status. DEFENDANT HOMEOWNERS OF AMERICA INSURANCE COMPANY’S COMBINED RESPONSE – Page 4 of 9 CAUSE NO: 19-CV-0258 CLAIM NO.: 201708270103 until appraisal (among other things) is complete – and that award did not issue until June 1, 2021. And, yet HOAIC still designated experts (including its designated appraiser, defensively) nearly a year earlier. So, to the extent Defendant insists a month’s worth of alleged DCO noncompliance 7 warrants the striking of Plaintiff’s expert in defense, he is, yet again, breaching his Policy, causing the very prejudice which precludes his recovery thereunder, and increasing HOAIC attorney’s fees it seeks herein. 9. Third, Defendant points to the nondisclosure of expert reports with opinions as noncompliant with the Court’s DCO. Once again, that June 1, 2021 appraisal award, with Nick Baggett serving as HOAIC’s appraiser since his designation on September 6, 2018, is his report. And, as the Court is well-aware, that report is within the record since HOAIC’s July 22, 2021 Motion for Summary Judgment on it. As a side comment, Defendant would, by delaying that appraisal for nearly three-years and making counterclaims without meeting the appraisal condition precedent, now attempt to use this Court’s DCO to strike the appraiser (where Defendant contractually agreed to abate his counterclaims, and for which Nick Baggett was engaged, until that appraisal award). Once again, this is the delay, obstruction and prejudice for which HOAIC sued in the first place and for which it justifiably seeks its fee recovery herein. 10. Fourth, as the Court’s docket reflects, the Court’s May 21, 2019 Discovery and Docket Control Order was for a November 2, 2020 bench trial – which was cancelled on HOAIC’s request for jury on August 17, 2020. Thereafter, on March 31, 2022 and after the COVID 7 HOAIC fully recognizes this Court’s inherent authority and discretion to control its docket and issue scheduling orders. The timing problem, however, comes in when considering Defendant’s Policy, his premature counterclaims against HOAIC, and then his violation of the former even more by not abating his counterclaims until that compliance. Said another way, the Court’s DCO (before appraisal award issued), to the extent Defendant uses it here as a sword, cut Defendant. DEFENDANT HOMEOWNERS OF AMERICA INSURANCE COMPANY’S COMBINED RESPONSE – Page 5 of 9 CAUSE NO: 19-CV-0258 CLAIM NO.: 201708270103 pandemic-related delay, the Court issued another Discovery and Docket Control Order – for a December 5, 2022 trial date (which, as the Court may recall, Defendant scrambled at the last-minute to get continued). So, according to Defendant, HOAIC’s August 3, 2020 designation of experts is somehow untimely to Defendant’s prejudice. This argument ignores that HOAIC’s disclosure was before the appraisal award condition precedent to resolve Defendant’s counterclaim’s amount-of-loss was met (where the Policy mandates abatement until compliance). It also ignores the reality of a February 13, 2023 trial setting,– where Baggett is a defensive expert, and the award did not issue until after that first bench trial setting. 11. Fifth and finally, to the extent good cause need be shown, 8 of the three experts designated in 2020, Nick Baggett (the appraiser) was (and is) designated in defense against Defendant’s counterclaims – that is, “OTHER PARTIES” with HOAIC as the counter-defendant . . . within the DCO deadline. However, his expert report, because of Defendant’s delay in appraisal (not designating a “qualified” appraiser timely and otherwise), could not be disclosed under the Court’s DCO because appraisal did not conclude until June 1, 2021. Defendant thereafter, despite HOAIC’s designation of him nearly a year earlier, never sought his deposition to explain the resultant (and binding as to amount of, as opposed to covered, damage) award. 12. As to the designations of counsel for their respective testimony on fees, again, Defendant made no disclosure request, served no written discovery or sought depositions of HOAIC’s counsel for their expert opinions of their fees incurred herein. That aside, a strike of the undersigned counsel is nonsensical for three, additional reasons. First, counsel have, 8 See affidavit filed herewith. DEFENDANT HOMEOWNERS OF AMERICA INSURANCE COMPANY’S COMBINED RESPONSE – Page 6 of 9 CAUSE NO: 19-CV-0258 CLAIM NO.: 201708270103 respectfully and in conjunction with their summary judgment practice, already filed fee affidavits up to the dates of those filings 9 – with those numbers continuing up as Defendant proceeds unreasonably. Defendant made not objections then to any fees affidavit, which is waiver on its face and as a matter of law . . . and Defendant still sought no discovery. Second, as HOAIC as repeatedly stated, the costs and fees recoverable under the Texas Declaratory Judgment Act are discretionary – “as are equitable and just.” TEX. CIV. PRAC. REM. CODE, § 37.009. Third, Defendant cannot possibly argue, and HOAIC refutes it by the Court’s record – showing good cause, that attorney’s fees expert were unanticipated and, at this point, prejudicial and a “significant surprise.” “This is all about fees” was Defendant’s mantra against HOAIC in multiple summary judgment motions before this Court – most recently in their own summary judgment motion. Since HOAIC sued in February 2019, asserting fee recovery, this expert for fees issue has been front-and-center for Defendant and his counsel and, since the designations in August 2020, they have done nothing to discover anything. Stated another way, HOAIC easily meets its TEX. R. CIV. P. 193.6(b) burden to show “lack of unfair surprise or unfair prejudice” on the record already before the Court. 13. So, setting aside the Court’s duty (independent of any alleged expert disclosure malfeasance) to make that inquiry itself for what “equitable and just” fees on these facts, this Court can take judicial notice that designations of fee experts years ago (without Defendant seeking any discovery) does not significantly prejudice Defendant’s ability to cross examine. What Defendant’s motion does is inform/reinforce the bases on which that discretion should be exercised here to grant HOAIC “equitable and just” fees, in light of the facts presented. The 9 Supplemental disclosure by HOAIC to a request for disclosures Defendant never made, as specified by TEX. R. CIV. P. 193.6. Again, good cause is shown by the time in which those affidavits have been in the Court’s record – such that lack of unfair surprise in the intervening years is patent within that record. See affidavit filed herewith. DEFENDANT HOMEOWNERS OF AMERICA INSURANCE COMPANY’S COMBINED RESPONSE – Page 7 of 9 CAUSE NO: 19-CV-0258 CLAIM NO.: 201708270103 expert opinion of HOAIC’s counsel, that Defendant “did this” and caused HOAIC’s prejudice and fees through noncompliance, is repeated throughout the Court’s record and continuing – both before any DCO deadline or appraisal award and after. PRAYER WHEREFORE, Plaintiff Homeowners of America Insurance Company prays that the Court: (1) grant its Motion to Exclude as related experts, witnesses, and damages for which Defendant failed, despite two requests, to make disclosures; and (2) deny Defendant’s Motion to Exclude HOAIC’s expert witnesses, on any of the following premises: (a) a superseding DCO where the prior DCO was for a 2020 trial; (b) a counter-defendant designation of Nick Baggett, whose report is the award in the record; (3) Plaintiff’s designation of fee experts, on claims evident from the initial petition through summary judgments (including Defendant’s), where Defendant requested no discovery on anything and Plaintiff’s fee experts’ opinions are clear, or, alternatively, good cause is shown on the record that an August 3, 2020 designation of fee experts without reports and unrequested disclosures, is not unfair surprise or prejudice to Defendant. Plaintiff Homeowners of America Insurance Company finally prays that it be granted such other and further relief to which Plaintiff may show itself justly entitled, both in law and at equity. Respectfully submitted, /s/ Esther A. Grossman ESTHER A. GROSSMAN egrossman@hoaic.com State Bar No.: 24010077 General Counsel for Homeowners of America Insurance Company 1400 Corporate Drive – Suite 300 Irving, Texas 75038 972-607-4241 x4233 phone 972-573-2602 facsimile DEFENDANT HOMEOWNERS OF AMERICA INSURANCE COMPANY’S COMBINED RESPONSE – Page 8 of 9 CAUSE NO: 19-CV-0258 CLAIM NO.: 201708270103 ATTORNEY FOR DEFENDANT HOMEOWNERS OF AMERICA INSURANCE COMPANY AND THE MONSON LAW FIRM, LLC By: /s/ Ronald L. Hornback Ronald L. Hornback State Bar No. 24059257 Ronald@monsonfirm.com Matthew D. Monson Texas Bar No. 24056797 Matthew@monsonfirm.com 900 Rockmead Drive, Suite 141 Kingwood, Texas 77339 Telephone: 281-612-1920 Facsimile: 281-612-1971 OF COUNSEL CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument have been served upon all counsel of record electronically and/or by e-service, email, regular or certified mail, return receipt requested, facsimile and/or hand delivery on the 9th day of February 2023. /s/ Ronald L. Hornback Ronald L. Hornback DEFENDANT HOMEOWNERS OF AMERICA INSURANCE COMPANY’S COMBINED RESPONSE – Page 9 of 9 CAUSE NO: 19-CV-0258 CLAIM NO.: 201708270103 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Ronald Hornback on behalf of Ronald Hornback Bar No. 24059257 ronald@monsonfirm.com Envelope ID: 72622406 Status as of 2/9/2023 4:20 PM CST Associated Case Party: Emilio Menchaca Name BarNumber Email TimestampSubmitted Status Jessica Salto jsalto@txattorneys.com 2/9/2023 3:40:59 PM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Ronald L.Hornback Ronald@monsonfirm.com 2/9/2023 3:40:59 PM SENT Esther A.Grossman egrossman@hoaic.com 2/9/2023 3:40:59 PM SENT Hilda Pavez hpavez@manuelsolis.com 2/9/2023 3:40:59 PM SENT Associated Case Party: Homeowners of America Insurance Company Name BarNumber Email TimestampSubmitted Status Martha Spahr mspahr@hoaic.com 2/9/2023 3:40:59 PM SENT