5th Court of A

ppealsF

ILED

: 06-21-12

Lisa Matz, C

lerk

IDENTITY OF PARTIES AND COUNSEL

(!) PLAINTIFF/APPELLANT: BICH NGOC NGUYEN, represented in the trial court and on appeal by Ernest (Skip) Reynolds III, State Bar No. 16806300, of the Law Office of Ernest (Skip) Reynolds III, 314 Main Street, Suite 300, Fort Worth, Texas 76102, Telephone No. (817) 390-0300, Facsimile No. (817) 390-0310; David Lewallen, State Bar No. 12272100, of the Law Office of David Lewallen, 314 Main Street, Suite 300, Fort Worth, Texas 76102, Telephone No. (817) 390-0300, Facsimile No. (817) 390-0310.

(2) DEFENDANTS/APPELLEES, ALLSTATE INSURANCE COMPANY AND LINCOLN BENEFIT LIFE COMPANY : represented in the trial court by Christina M. Putman, Seyfarth Shaw LLP, 700 Louisiana Street, Suite 3700, Houston, Texas 77002; and represented on appeal by Lev on G. Hovnatanian, State Bar No. 10059825, of Martin, Disiere, Jefferson & Wisdom, LLP, 808 Travis, Suite 1800, Houston, Texas 77002, Telephone No. (713) 632-1700, Facsimile No. (713) 222-0101.

NOTE: Formerly, though now dropped and dismissed by Appellant, Agent Truong and her Insurance Agency were in the case. They were Defendants in the trial court, and were initially Appellees in this case. Their contact information was as follows:

DEFENDANTS/APPELLEES, SUONG TRUONG AND THE SUONG TRUONG INSURANCE AGENCY: represented in the trial court by Thomas A. Culpepper, Thompson, Coe, Plaza of the Americas, 700 North Pearl Street, Twenty-fifth Floor, Dallas, Texas 75201; and represented on appeal by Levon G. Hovnatanian, State Bar No. 10059825, of Martin, Disiere, Jefferson & Widsom, LLP, 808 Travis, Suite 1800, Houston, Texas 77002, Telephone No. (713) 632-1700, Facsimile No. (713) 222-0101.

I

TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ........................................ 1

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

APPENDICES [the listing] ..................................................... iii

TABLE OF AUTHORITIES ................................................... viii

ABBREVIATIONS ............................................................ x

REPLY BRIEF OF APPELLANT ................................................ l

STATEMENTOFTHECASE ................................................... 2

POINTS DISCUSSED IN THIS REPLY BRIEF ..................................... 3

A. Comments About Appellant's Brief ................................... 3

B. Comments About Appellee's Brief .................................... 3

C. The Remedy: sustain Appellant's points of error; and reverse and remand this case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE FACTS PERTINENT TO THIS REPLY BRIEF ................. 3

Some Factual Background ................................................. 3

Some Procedural Background .............................................. 5

SUMMARY OF THE (ARGUMENT) POINTS DISCUSSED ......................... 13

(ARGUMENT) POINTS DISCUSSED ........................................... 13

A Comments About Appellant's Brief .................................. 13

B. Comments About Appellee's Brief ................................... 14

L Not Meritorious ............................................ 14 2. Goes Outside The Record .................................... 15 3. Disregards The Law ........................................ ~ 16 4. Invites Appeals Court to Disregard the Law ...................... 17

11

5. Engages In Mudslinging ..................................... 18 6. Contains Something of a Fictional Aspect ........................ 18 7. "Glosses Over" Serious Defense Misconduct ..................... 19 8. Is It Supposed To Be Some Sort Of New

Summary Judgment Motion? .................................. 19 9. Tries to Ignore/Bypass Stipulation and Rule 11 Agreements;

and improperly suggests that an insurance company can unilaterally "Rescind" an existing contract ....................... 20

C. The Remedy: sustain Appellant's points of error; and reverse and remand this case. . ................................................ 22

I. Trial process fundamentally flawed; several errors, a number of which independently require remand; also, effect of cumulative error. ........................................... 23

2. Justice requires appellate relief be granted ....................... 23

CONCLUSION ....................................... : ...................... 24

CERTIFICATE OF SERVICE .................................................. 27

NOTE:

TAB:

1

2

3

APPENDICES

All Appendix Materials as Referenced at TABS 1 through 37 (inclusive) were previously and properly filed with the Clerk of this Honorable Court of Appeals on 1 March 2012, and are therefore already a part of the record of this case on appeal. Now they will not be re-filed; but they are incorporated by reference into this Reply Brief, and they all remain as parts of this record of this case.

Index to portions of Reporter Record Materials showing lack of knowledge of Court re this type of case; and efforts of insurance companies' attorneys to take advantage of this and cause confusion

Index to portions of Reporter Record Materials showing that trial judge does not understand the difference between a real trial and a summary judgment hearing

Index to portions of Reporter Record Materials showing clearly that neither the insurance company attorney nor the plaintiff attorney expected this case to be dismissed on summary judgment

111

4 Index to portions of Reporter Record Materials which show beyond doubt or dispute that the subject life insurance policy contract was issued, but payment of the policy death benefit has not been made

5 Index to portions ofReporter Record Materials that show that Allstate/Lincoln knew they have a burden of proof to show a defense and prove fraud, and they knew they cannot meet it because the medical condition at issue was undiagnosed when the subject life insurance policy was sold and issued

6 Index to portions of Reporter Record Materials showing that prior to date [6 June 2011] of MSJ hearings the trial court was made aware many times [by the parties at hearings, on the record, and with no party in disagreement] of the STIPULATION and the related RULE 11 AGREEMENT

7 A STIPULATION [made between Insurance Defendants and Plaintiff; properly signed; and filed with Clerk of Trial Court in January, 2011] [shows a life insurance contract existed, had issued, premium had been paid, claim for benefits was timely; but no benefits have been paid] [as illed with court clerk on or about 10 January 2011].

7 B STIPULATION [made between Insurance Defendants and Plaintiff; properly signed; and filed with Clerk of Trial Court in January, 2011] [shows a life insurance contract existed, had issued, premium had been paid, claim for benefits was timely; but no benefits have been paid] [as filed by Plaintiff as summary judgment evidence on or about 31 May 2011] [same STIPULATION as at APP 7 A].

8 A RULE 11 AGREEMENT [made between Insurance Defendants and Plaintiff; properly signed; and filed with Clerk of Trial Court in January, 2011] [relates to the stipulation] [as filed with the court clerk on or about 10 January 2011]

8 B RULE 11 AGREEMENT [made between Insurance Defendants and Plaintiff; properly signed; and filed with Clerk of Trial Court in January, 20 11] [relates to the stipulation] [as filed by Plaintiff as summary judgment evidence on or about 31 May 2011] [same RULE 11 AGREEMENT as at APP 8 A]

9 ADMIT RESPONSES [of ins def as per our MSJ evidence]

10 FINAL JUDGMENT [signed on evening of 6 June 2011] [and granting MSJ of Insurance Defendants] [but modified by Court, sua sponte, on 7 June 2011]

11 ORDER [signed on evening of6 June2011] [and granting MSJ of Troung- on "no­evidence" grounds only] [but modified by Court, sua sponte, on 7 June 2011]

lV

12

13

14

15

16

17

18

19

20

21

22

23

24

REVISED ORDER [signed by Court sua sponte on morning of 7 June 2011] [and granting MSJ of Insurance Defendants]

REVISED ORDER [signed by Court sua sponte on morning of 7 June 201 I] [and granting MSJ of Troung - on "no-evidence" grounds only ]

Brief filed by Pltff on 31 May 20 II - in which pertinent law is discussed- regarding issues pertinent re MSJ matters and re this appeal - styled: Brief of Plaintiff Regarding Some Controlling Law and Legal Issues in this Case [Prepared in Connection With Preparation of the Case for Trial, and In Connection With All Responses to All Motions for Summary Judgment Filed by Defendants in These Proceedings .... ]

Index to portions of Reporter Record Materials regarding problems and improper conduct relating to witness Fautheree; and decision of trial court to disregard the prejudice to Plaintiff

Reporter Record excerpt- in which ins co atty admits her paralegal involved with witness Fautheree

Affidavit of Parmer - witness Fautheree - details, including her threat ...... .[see: CR-A-pp. 1141-1148]

Second Affidavit of Parmer- witness Fautheree- details, including facts that she has never been a nurse or a paramedical or a phlebotomist ....... [see: CR-A-pp. 1167-1169]

ORDER [signed on 23 May 2011, thus prior to 6 June 2011] re witness Fautheree

ORDER [signed on 25 July 2011] re witness Fautheree

Letter from ins co atty- week before MSJ hearing of 6 June 2011 -bully tone­expecting to try case ...... Shows ins co defendants were now spending several thousand dollars a day on case

Index to portions of Reporter Record Materials regarding Rambo tactics [but not including the witness Fautheree problems] of the insurance company defendants

ORDER ON MOTION OF BICH NGUYEN REGARDING PERJURY BY INSURANCE DEFENDANTS ASKING FOR PROTECTIONS AND OTHER RELIEF [signed on 6 June 2011] [gave ins. co. defendants a ''free pass" on perjury]

Allstate Insurance Co. and Lincoln Benefit Life Company's Objections to Plaintiff's Summary Judgment Evidence [filed on 3 June 2011] [does not contain an "objection" which the trial court judge purported to "grant"]

v

25

26

27

28.

29.

30.

31.

32.

33.

34.

35.

36.

Form: for MSJ Response from current West book- shows no requirement to do what Judge Tapscott seems to want to require [source: Finley & Baker, TEXAS SUMMARY JUDGMENT AND RELATED TERl\1INATIONMOTIONS, Section 1:112 (West 2010)]

Excerpt of pertinent part of TRCP 166a- shows no requirement to do what Judge Ken Tapscott seems to want to require

TRCP 58 -shows permissible to incorporate by reference

Book excerpts- "From Good Hands to Boxing Gloves" [about Allstate's pattern of misconduct]

Plaintiff's Written Objection to Any Attempt of Any Defendant to Get Court Consideration oflmproper Summary Judgment-Related Matters

Affidavit ofBich Nguyen [as filed by Plaintiff as summary judgment evidence on or about 31 May 20 11] [NOTE: Trial Court did not sustain any objection to any of Plaintiff's summary judgment evidence]

Affidavit of Mr. Dung Kim Le [as filed by Plaintiff as summary judgment evidence on or about 31 May 2011] [NOTE: Trial Court did not sustain any objection to any of Plaintiff's summary judgment evidence]

Affidavit of Dr. Tichenor [as filed by Plaintiff as summary judgment evidence on or about 31 May 2011] [NOTE: Trial Court did not sustain any objection to any of Plaintiff's summary judgment evidence]

Affidavit of Mr. Hampton [as filed by Plaintiff as summary judgment evidence on or about 31 May 201 I] [NOTE: Trial Court did not sustain any objection to any of Plaintiff's summary judgment evidence]

Index to various key portions of Reporter Record Materials [our APP 101 memo]

The paragraph responding to the Insurance Defendants' ''traditional" MSJ with objections and discussions of evidence (fact issues) [see: CR-A-pp. 1 030; and I 063-1087; and 1095; and 1098-11 09] [excerpted from Response of Plaintiff [Non­movant] to Oppose Allstate Insurance Co. and Lincoln Benefit Life Company's Combined Traditional and No Evidence Motion for Summary Judgment, which was timely filed in the trial court]

The paragraph responding to the Insurance Defendants' "no-evidence" MSJ with objections and discussions of evidence (fact issues) [see: CR-A-pp. 1030; and 1087 -1094; and 1 095; and 1 098-1109] [excerpted from Response of Plaintiff [Non-

VI

37.

movant] to Oppose Allstate Insurance Co. and Lincoln Benefit Life Company's Combined Traditional and No Evidence Motion for Summary Judgment, which was timely filed in the trial court]

Discussion of some pertinent and controlling law points

1. Summary Judgment law in Texas

a. Generally b. Traditional MSJ c. No-Evidence MSJ

2. Effect of Admissions, Stipulation and of Rule 11 Agreement

3. Recision: not favored by Texas law

4. TEXAS RULE OF CIVIL PROCEDURE 58

Vll

TABLE OF AUTHORITIES

Cases: Page

Clear Creek Basin Authority v. City of Houston, 589 S.W.2d 671, 678 (Tex. 1979) ....................................... 16,22

Clement v. City of Plano, 26 S.W.3d 544, 549 (Tex. App.-Dallas 2000) ................................. 22

Fortenberry v. Fortenberry, 582 S.W.2d 188, 190 (Tex. Civ. App.- Beaumont 1979, writ refd, n.r.e.) .......... 24

Gamer v. Long, 106 S.W.2d 260,269 (Tex. App.-Fort Worth 2002, no writ) (opinion by Livingston) ............................................... 22, 23

Grimes v. Reynolds, 252 S.W.3d 554, 558 (Tex. App.-Houston [14th Dist.] 2008, no pet.) ............... 16

· Hinojosa v. Columbia/St. David's Healthcare System, L.P., 106 S.W. 3d 380, 387-388 (Tex. App.- Austin 2003) .......................... 5

Johnson v. Brewer & Pritchard, P.C., 73 S.W. 3d 193,203-204 (Tex. 2002) .................................... 16, 18

M.J.R. 's Fare of Dallas v. Permit and License Appeal Board of Dallas, 823 S.W. 2d 327, 330-331 (Tex. App.-Dallas 1991, writ denied) ............ 17, 22, 23

Morris v. JTM Materials, Inc., 78 S.W.3d 28 (Tex. App.- Fort Worth 2007, no pet.) ........................... 16

Perry v. Brooks, 808 S.W. 2d 227, 229 (Tex. App.-Houston [14th Dist.]1991, no writ) ............. 22

Sci. Spectrum v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997) .......................................... 16

Speck v. First Evangelical Lutheran Church of Houston, 235 S.W. 3d 811 (Tex. App.-Houston [1" Dist.] 2007, no writ.) ................... 16

Vlll

Procedure Ruies:

Texas Ruies of Appellate Procedure:

Rule 33.1 ............................................ 9, 12, 14, 15, 20 Rule 34.5 ....................................................... 15 Rule 34.6 ....................................................... 15 Rule 38.2(a)(2) ................................................... is Rule 38.2(b) ..................................................... 14 Rule 44.l(a) ..................................................... 24

Texas Ruies of Civil Procedure:

Rule 58 ....................................................... 8, 10 Rule 94 ......................................................... 23 Rule 166a .............................................. 16, 17, 20,21 Rule 166a(c) ................................................ 9, 16, 22 Ru1e !66a(d): .................................................. 8, 10 Ru1e 166a(i) ..................................................... 16 Rule 198 ..................................................... 31,34 Rule 263 ........................................................ 34

Book(s) aud Treatise(s):

Cornell & Martin, TEXAS INSURANCE LAW DIGEST, at 426 [discussing Bates] (ALM Media Properties ~ 20 II) ............................ 22

From Good Hands to Boxing Gloves, David J. Berardinelli ............................ 20

Kincaid and Martin, INSURANCE LITIGATION, Section 11:29 (WEST) ............... 23

IX

ABBREVIATIONS

To try to achieve brevity, the APPELLANTS' BRIEF and this REPLY BRIEF do contain some abbreviations, as follows :

Full Term ABBREVIATION

APPENDIX APP [example: APPENDIX I] [example APP I]

Clerk's Record- [Original Requested by Appellant; and filed with Clerk of Court of Appeals on 11/17/20 II] CR-A

Clerk's Record- [Supplement Requested by Appellant; and filed with Clerk of Court of Appeals on 11/17/2011] CR-A-SUPP

Clerk's Record - [Requested by Appellee Agent; and filed with Clerk of Court of Appeals on 11/03/2011] CR-B

Clerk's Record- [Requested by Appellees Insurance Companies; and filed with Clerk of Court of Appeals on 01/05/2012] CR-C

Clerk's Record- [Originally requested by Appellant with original Request for Record Materials; but not included when most of these materials were transmitted (see: APP CR-A) to appeals court; so after motion and appeal court order of 24 January 2012, this originally requested record material was filed with the Clerk of Court of Appeals on 02/02/2012]

Reporter's Record- [Requested by Appellant; and filed with Clerk of Court of Appeals on 09/12/20 II] -Volume 1 of3

Reporter's Record - [Requested by Appellant; and filed with Clerk of Court of Appeals on 09/12/2011] -Volume 2 of3

Reporter's Record - [Requested by Appellant; and filed with Clerk of Court of Appeals on 09112/20 II] -Volume3 of3

X

CR-D

RR-A-1

RR-A-2

RR-A-3

Reporter's Record- [Requested by Appellee Agent; and filed with Clerk of Court of Appeals on 11/30/2011] -Volume 1 of 6

Reporter's Record- [Requested by Appellee Agent; and filed with Clerk of Court of Appeals on 11130/20 11] -Volume 2 of 6

Reporter's Record- [Requested by Appellee Agent; and filed with Clerk of Court of Appeals on 11/30/2011] -Volume 3 of 6

Reporter's Record- [Requested by Appellee Agent; and filed with Clerk of Court of Appeals on 11130/20 11] -Volume4of6 ·

Reporter's Record- [Requested by Appellee Agent; and filed with Clerk of Court of Appeals on 11130/20 11] -Volume 5 of6

Reporter's Record- [Requested by Appellee Agent; and filed with Clerk of Court of Appeals on 11/30/2011] -Volume 6 of 6

Brief of Appellees Allstate Insurance Company and Lincoln Benefit Life Company [as filed on or about 1 June 2012]

TEXAS DECEPTIVE TRADE PRACTICES ACT

TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT

TEXAS PENAL CODE

TEXASRULESOFAPPELLATEPROCEDURE

TEXAS RULES OF CIVIL PROCEDURE

TEXAS RULES OF EVIDENCE

XI

RR-B-1

RR-B-2

RR-B-3

RR-B-4

RR-B-5

RR-B-6

APPELLEE'S BRIEF

DTPA

T.D.R.P.C.

TXPC

TRAP

TRCP

TREY

NO. 05-11-01120-CV

IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS

AT DALLAS

BICH NGOC NGUYEN, Appellant,

v.

SUONG TRUONG, THE SUONG TRUONG INSURANCE AGENCY,

ALLSTATE INSURANCE COMPANY AND LINCOLN BENEFIT LIFE COMP ANY,Appellees.

On Appeal from the County Court at Law #4, Dallas County, Texas, The Honorable Ken Tapscott Presiding

Cause No. 09-09185-D

REPLY BRIEF OF APPELLANT

TO THE HONORABLE JUSTICES OF SAID COURT:

NOW COMES BICH NGOC NGUYEN,Appellantherein,andrespectfullyfilesthisReply

Brief to reply to Appellees Brief, 1 and would respectfully show the Court as follows:

In the interest of clarity, Appellant, Bich Ngoc Nguyen, may be referred to as "Plaintiff', and

the two insurance company App~llees will be referred to as either "Allstate", or "Lincoln", or else

as "Insurance Defendants" [since they were the Defendants in the Trial Court]; and the Truong

Defendants [formerly Appellees, now dismissed] may be referred to jointly as "Truong".

References to the Clerk's Record and to the Court Reporter's Record and to the Appendices

Please note that Appellant has previously, and timely, filed BRIEF OF APPELLANT [on 1 March 20 12] complaining of errors in the Trial Court proceedings, below, and seeking to reverse the Trial Court's Final Judgment of 6 June 2011, and requesting remand. REPLY BRIEF OF APPELLANT Page 1

will be abbreviated as indicated above in the sections listing "ABBREVIATIONS" and

"APPENDICES". Some portions of the Trial Court record in this case are included in the Appendix

materials. and may be referred to by their Tab number in the Appendix; e.g. ["APP 1" or "APP 17"].

STATEMENT OF THE CASE

Appeal is brought by Appellant, Plaintiff below, from the Final Judgment of 6 June 2011,

as modified in a nunc pro tunc type order of the Court signed sua sponte the following day [7 June

20 11]; and Appellant does complain about certain other specific rulings and misconduct of certain

parties defendant in connection with certain procedural matters, and certain conduct involving a

witness.

The case was on the jury docket, but shortly before its trial date was dismissed by summary

judgment on 6 June 20 ll. This was error. The trial judge believed, erroneously, that he was

conducting a "mini-trial". On the following morning the Court, sua sponte, signed nunc pro tunc

type orders. One of these "morning after" orders purported to grant to the Insurance Defendants

relief not requested in connection with a "motion" never filed. A timely motion for new trial was

filed; and later, this appeal was timely initiated. Subsequently, the Truong Defendants were

dismissed by Plaintiff/ Appellant; but no claims against the Insurance Defendants were dismissed by

Plaintiff/Appellant. Presently, the Insurance Defendants [Appellees] and Plaintiff [Appellant] are

the only parties to this appellate proceeding. Appellant [Plaintiff below] now asks this appeals court

to reverse the error of the trial court, and to remand this case for trial by jury on the merits.

REPLY BRIEF OF APPELLANT Page2

POINTS DISCUSSED IN THIS REPLY BRIEF 2

A. Comments About Appellant's Brief

B. Comments About Appellees' Brief

C. The Remedy: sustain Appellant's points of error; and reverse and remand this

case.

STATEMENT OF THE FACTS PERTINENT TO THIS REPLY BRIEF 3

Some factual background :

Plaintiff, Bich Nguyen, and her mother, Anh Nguyen, came legally to Texas from VietNam,

their nation of birth. Neither could speak or read or write English. Anh, now deceased, never

acquired English language skills. Bich Nguyen, daughter of Anh and beneficiary under the life

insurance policy contract which is at the basis of this case, is still not functionally literate or fluent

in English [see: CR-A-pp. 835-910; esp. at 857]. Bich Nguyen, Plaintiff below, is now Appellant.

All of this is undisputed. Plaintiff and her mother lived with relatives, who are U. S. Citizens, and

both of them found jobs in businesses in which their lack of English did not matter as there were co-

workers who could communicate with them. Bich bought an auto and as it required insurance she

2

These points A, B, and C are discussed below in this brief at pages 13 - 24.

3

Note: Regrettably, Appellees' Brief misrepresents, strays from, and goes outside of the actual record of this case. [This might be due to confusion: the Houston attorneys who represented Appellees in the Trial Court are not representing Appellees in this appeal. The new lawyers now representing Appellees on this appeal, although also from Houston, are from a different law firm; and those new "appeal" lawyers and their firm were not involved in this case when the real record was actually created]. This problem is so pervasive that any attempt to make a point by point response to each instance where Appellees' Brief misrepresents or strays from or goes outside of the record would get mired down in confusion created by the failure of Appellees' Brief to properly follow the record. Thus to help to keep this appeal properly focused on the real record, both factually and procedurally, Appellant will re-state immediately below pertinent parts [See also: BRIEF OF APPELLANT at pages 6-15.] of the BRIEF OF APPELLANT as previously filed, which do accurately reflect the true record of this case. REPLY BRIEF OF APPELLANT Page 3

bought auto insurance from Truong, an exclusive agent of the Insurance Defendants who maintained

an office in Grand Prairie, Texas, and who was fluent in Vietnamese as she had been born in that

nation. Later in time Anh bought a policy of life insurance from Troung, naming Bich Nguyen as

beneficiary, and it was issued by Lincoln on 9 June 2008, and delivered to the named insured, Anh,

an? after that so long as Anh lived all premiums were timely and properly paid and the policy was

infullforceandeffect [see: CR-A-pp. 842-844]. The STIPULATION [see: CR-A-pp. 899-910; 717-

721; 14-24] of the Plaintiff and the Insurance Defendants establishes that the contract in question

was made, and issued, and that thereafter so long as Anh survived she paid premiums as required,

thus complying with her obligations under the contract; and this is undisputed.

After the subject life insurance policy was issued, Anh Nguyen, the named insured, got a

diagnosis of cancer, and subsequently she died of that cancer, which [this is undisputed] was

undiagnosed at the time when she applied for the subject policy oflife insurance [see: APP 5; RR-B-

3-p. 21, lines 16-20; CR-A-p. 18; CR-A-pp. 721; CR-A-p. 904]. A claim for the payment of the life

insurance policy benefit was timely and properly made, soon after the death of Anh Nguyen, but as

of this date [some years later] it still has not been paid. 4 Janie Adams, under oath at deposition,

testified that she was the only person who investigated and denied the claim, and that at all times she

was working for Allstate [on its payroll] and also functioning on behalf of Lincoln. 5

4

Instead, the insurance defendants, acting together but under the general leadership of Allstate, undertook to "investigate" and then more than seventy five days after the death benefit claim was made sent out a harsh and accusatory letter purporting to deny the claim. The investigation was done by Janie Adams, who also wrote and signed the letter, and she was at all times employed on the payroll of Allstate but acting also for and on behalf of Lincoln [which is owned by a company that, in turn, is owned by Allstate]. Troung, the agent of the insurance defendants Allstate and Lincoln, testified that the insurance defendants always investigate life claims and try to deny them.

5

Later, in what appeared to be peljury, the insurance defendants tried to use an affidavit of a different home office employee to claim that this affiant had been involved in the claim review and denial REPLY BRIEF OF APPELLANT Page 4

An expert [Hampton] designated by Plaintiff found and stated that the Insurance Defendants

were both guilty of much misconduct, including breach of the subject life insurance contract, failure

to comply with the prompt pay statute, and commission of bad faith tortious misconduct, which

included failing to do a proper claim investigation and also included making a pretextual and

unjustified denial of the claim, and that this had indeed caused harm to Plaintiff [see: CR -D-pp. 158-

181: this affidavit was part of Plaintiff/Non-Movant's summary judgment evidence; but the trial

court failed to examine any of Plaintiff/Non-Movant's summary judgment evidence].

Some procedural background :

The trial court judge [Ken Tapscott] believes, mistakenly, that in Texas a summary judgment

is a "mini-trial"; 6 and this misapprehension is at the root of the most fundamental error in this case.

7 The judge, on the basis of specific but improper rulings, "dumped" this case. In so doing he

disregarded, and failed to follow, well established and controlling law. He also disregarded the

record of the case. He committed many errors, all of which are discussed below in detail.

This suit was initiated after the claim for payment of the death benefit on an insurance policy

contract was improperly denied. 8 After the Insurance Defendants entered the case Plaintiff

process [which is contrary to the testimony of Adams] and that this affiant was therefore somehow qualified to be a document custodian and fact witness. This apparent perjury was brought to the attention of the Court [see: CR-A-pp. 828-833] in a timely manner by Plaintiff, but the Court declined to grant relief [CR-A-p. 1118], though properly requested to do so.

6

[see: APP 2; RR-B-6-p. 32, lines 13-14: judge stating: a summary judgment is a trial. "You know, it's a mini-trial."]

7

See: Hinojosa v. Columbia/St. David's Healthcare System, L.P., 106 S.W. 3d 380, 387- 388 (Tex. App.- Austin 2003) (making it clear that summary judgment proceedings are not trial by affidavit or deposition).

8

Suit was first brought against Troung, and later the Insurance Defendants were added [see: CR -A-pp. REPLY BRIEF OF APPELLANT Page 5

requested some depositions, including a deposition(s) of their corporate representative(s ); but after

discussion, and to save time and money for all parties in the discovery process, and to save the

Insurance Defendants from having to present corporate representative testimony, an agreement [see:

CR-A-pp. 25-26] was made that resulted in the signing of both a STIPULATION [see: CR-A-pp.

14-24] and a companion RULE 11 AGREEMENT [see: CR-A-pp. 25-37], and in January, 2011, as

suggested by the attorney for the insurance company defendants [see: CR-A-p. 25], both of these

documents were filed with the Clerk of the Court to be kept among the papers and items pertaining

to this case. From that time forward, all subsequently filed 9 amended petition pleadings had

attached to them as an exhibit a copy of the STIPULATION. The STIPULATION and the RULE

11 AGREEMENT were never modified or rescinded. In fact, the insurance company defendants

actually filed a copy of the STIPULATION as part of their offer of summary judgment evidence,

attached to their summary judgment motion. [See: CR-A-pp. 324 and 727-737]. The parties made

the trial court judge aware of the STIPULATION and the RULE 11 AGREEMENT on the record

10 several times [at least 7 times] at hearings [at least two hearings] after these documents had been

filed with the Court Clerk and prior to the time of any summary judgment hearing; and copies of

these documents were also filed by Plaintiff/Non-Movant as summary judgment evidence [see: CR-

D-pp. 32-41 and 18-30].

The case was on the jury docket [see: CR-A-p. 1191], but was dismissed on summary

1190-1215: clerk's Docket Sheet].

9

See: 5th Amd. Pet. at CR-A-pp. 38 and 86-97; 6th Amd. Pet. at CR-A-pp. 759 and 816-822; 7th Amd. Pet. at pp. 835, 899-910

10

See: APP 6; RR-B-2-pp. 10, lines 12-14; 12, line 13; 13, line 5; RR-B-3-pp. 31, lines 6-8; 33, line 12; 34, line 6; 42, lines 20-21; 47, lines 23-24; 112, line 14; 113, line4; and 118, lines 10-13 REPLY BRIEF OF APPELLANT Page 6

judgment on 6 June 2011. On the following morning the Court, sua sponte, signed two nunc pro

tunc type orders; but this did not cure the error. In fact, one of these two "morning after" orders

specifically purported to grant relief to the insurance defendants in connection with a motion they

never filed! The Final Judgment order of 6 June 2011 [see: CR-A-pp. 1116 and 1117], and the

"morning after" orders of 7 June 2011 [see: CR-A-pp. 1119 and 1120], were all explicitly specific

as to the ground(s) relied upon by the trial court for the summary judgment rulings. These orders

show specifically that the judge erred. 11

Prior to and at the time of the summary judgment motion hearing the trial court declined [see:

CR-A-p. 1118] to grant relief as requested by Plaintiff in connection with apparent perjury [see:

CR-A-pp. 828-833] practiced by the Insurance Defendants; and after the rulings of 6 June 2011,

the trial court declined [see: CR-A-p. 1173; see also: APP 15; RR-B-3-p. 95, lines 1-8] the request

[see: CR-A-pp. 1137-1159; and 1160-1163; and 1164-1172] ofPlaintiffforreliefinconnection with

what appears to be a matter of witness tampering [separate from the perjury problem]. The trial

court acted improperly in failing to grant the requested relief.

The Insurance Defendants made this case much more complex and difficult for everyone,

including the trial court, by filing a plethora of motions and creating lots of extra work and confusion

[see: APP 22; RR-B-4, pp. 4-11; RR-B-5, all pages; RR-B-6- pp. 28, line 20-p. 29, line 2] in the

"run up" to the summary judgment hearings [see: CR-A-pp. 1122-1135]. These were "Rambo"

II

The judge had admitted that he did not have experience with this type of case [see: APP 1; RR-A-2-p. 4, lines 15-18]. The judge "dumped" the case. In so doing he disregarded both the STIPULATION and the RULE 11 AGREEMENT. The case should not have been dumped on summary judgment; and it is clear that nobody expected that it would be: in fact, a letter [see: CR -A­p. 1129] prior to MSJ hearing shows that; and also shows the "tough guy" approach of insurance defendants, who immediately after they could not work their will at mediation started very literally spending several thousand dollars each day on attorneys [see: CR-A-pp. 1122-1124] and began to flood this case with extra paper and complexity. REPLY BRIEF OF APPELLANT Page 7

tactics. This was improper and caused error in this case. 12

The summary judgment motions of the Insurance Defendants were in fact facially, and

fatally, defective and this was brought to the attention of the trial court by Plaintiff, but to no avail.

The motions were too general and non-specific for any trial court to grant them, and the "no-

evidence"_motions requested "law point" relief. 13

The trial court erroneously based its grant of summary judgment [see: CR-A-p. 1120] in

favor of the Insurance Defendants upon two specific grounds:

I) that Plaintiff/Non-Movant had failed to bring forward any summary judgment evidence 14

• and ,

12

In order to assist the reader to understand what the insurance defendants were doing, it must be noted that they seemed content to try to avoid discovery, such as depositions [see: CR -A-25] of their own corporate representatives, until they were not able to force a resolution of their liking at mediation; and immediately after that the insurance defendants begin to flood the case with all sorts of "paper" and motions and extra complexity, and they literally spent several thousands of dollars every business day [see: CR-A-1129] in these efforts. In doing this they created an atmosphere of confusion that surrounded and engulfed the case at the time of the MSJ hearings. The trial judge had never tried a case of this type [see: APP 1-RR-A-2-p. 4, lines 15-18], and the insurance defendants knew this. They took advantage by trying, successfully as it turned out, to "bamboozle" the Court and to overwhelm the litigation process with unnecessary complexity and expense. This was in character for these particular insurance defendants, about whom a book [see: CR-A-pp. 1131-1135] has been written disclosing their antics; and this was a flagrant display of "Rambo" tactics by the insurance defendants which was improper.

13

Further, the existence of fact issues precluded any proper grant of summary judgment.

14

which ignored thefact that Plaintiff had indeed brought forward a substantial body [over 600 pages: see: CR-D-pp. 4-649] of summarv judgment evidence, clearly sufficientto defeat summary judgment and fully compliant with TRCP 58, and TRCP 166a(d); and also totally ignored a STIPULATION and a related RULE 11 AGREEMENT known to the trial court and to all parties which had been entered into between the Insurance Defendants and the Plaintiff and had been filed among the records of this case with the court clerk in January 2011, and which also had been brought forward by Plaintiff as summary judgment evidence; but which the Insurance Defendants [who had very willingly entered into the STIPULATION and the RULE II AGREEMENT] chose to attempt to ignore and bypass when they filed their summary judgment motions, and which the trial court simply ignored in making its ruling that Plaintiff [the summary judgment Non-Movant] had no summary REPLY BRIEF OF APPELLANT Page 8

2) that Plaintiff/Non-Movant had failed to provide "specific citations" 15 to summary judgment evidence. 16

In fact, STIPULATIONS and a RULE II AGREEMENT by and between (I) Plaintiff/Non-

Movant, and (2) the Insurance Defendants had been made, signed, and then had been filed with the

Clerk of the Court in connection with this case back in January 2011 [see: CR-A-pp. 25 and 14],

long before the insurance defendants filed any motion for summary judgment. 17

In fact, the Non-Movant properly and timely filed [see: CR-D-pp. 4-649] a large volume of

summary judgment evidence [well over 600 pages] to oppose the summary judgment motions. Yet,

judgment evidence. The trial court also simply ignored the existence of all of Plaintiffs [Non­Movant's] summary judgment evidence [even though there was a lot of it ..... several hundred pages. See: CR-D-pp. 4-649], and its exhibit designations and exhibit tabbing [see: CR-D-pp. 5-6] did specifically refer to and identify the summary judgment evidence.

15

Here the trial court purported specifically to grant the Insurance Companies' "procedural objection to Plaintiff's Response as to the lack of any specific citations .... "; but it is unclear what sorts of "specific citations" the trial court had in mind, and in any event, there is no requirement in Texas law for a non-movant to do this sort of thing. [See: TRCP !66a( c)]. Furthermore, and rather amazingly, the record shows that the insurance defendants did not make the objection that the Court purports io have granted. [So, this is where, in the "morning after" order, the trial court granted a motion that had not been made].

16

The Insurance Defendants had not made the objection. Thus, they cannot argue in favor of it in this appeal. See: TRAP 33.1.

17

No party asked that the STIPULATION and RULE 11 AGREEMENT be disregarded, modified, or rescinded, and the trial court did not make any indication it was making any modification to them, or rescinding them. In fact, even though they were on file in this case, and even though also the STIPULATION was attached to the amended petition pleadings that were filed in this case after the time when the STIPULATION was filed with the Clerk of the trial court, and even though Plaintiff/Non-Movant also brought the STIPULATION and the RULE 11 AGREEMENT forward as part of Non-Movant's body of summary judgment evidence filed in connection with Non­Movant's opposition to the various summary judgment motions, and thus quite incredibly, the insurance defendants simply ignored their own STIPULATION and their own RULE 11 AGREEMENT when they sought summary judgment; and the trial court, apparently not realizing that this cannot be done by a trial court, simply overlooked and ignored the STIPULATION and the RULE 11 AGREEMENT. REPLY BRIEF OF APPELLANT Page 9

the trial court ignored it and its order granted summary judgment relief upon the specific, though

erroneous, basis that there was "simply no evidence iu Plaiutiffs Response to consider." [See: CR-

A-pp. 1119 and 1120].

Because all defendants had filed very long and convoluted motions seekiug summary

judgment, and in order to avoid haviug to file the very same items such as summary judgment

evidence or briefs more than once iu respondiug to all of the defense summary judgment motions

[see: CR-A-pp. 964-965 (iu response to Truong MSJ); and: CR-A-p. 1033-1034 (respondiug to

Insurance Defendants' MSJ)], the Plaiutiff/Non-Movant iuvoked TRCP 58 [see: APP 27: about Rule

58], and filed some pleadiugs [see: CR-D-pp. 4-649] [pleadiugs which housed and iucorporated Non-

Movant's summary judgment] as companion pleadiugs to the Non-Movant's summary judgment

response pleadiugs. 18

In purporting to grant summary judgment the trial court did not grant any objection

to any of the summary judgment evidence proffered by Non-Movant. [See: CR-A-pp. 1119 and .

1120].

In her timely filed responses to the various summary judgment motions the Plaiutiff/Non-

Movant did in fact provide a large amount [several hundred pages] of competent summary judgment

evidence [see: CR-D-pp. 4-649]. As permitted by TRCP 58, this was housed iu a pleadiug

18

This was done iu a manner consistent with TRCP 58, and iu a way that clearly made the appropriate pleadiug references. The pleadiug [see: CR-D-pp. 4-649] filed which contaiued [or "housed"] the summary judgment evidence of Plaiutiff/Non-Movant, was several hundred pages long; and its exhibit designations and exhibit tabbing [see esp.: CR-D-pp. 5-6] did specifically refer to and identify the summary judgment evidence. [C.F.: TRCP !66a(d); and as this same summary judgment evidence was pertiuent to the Non-Movant's response to each and all of the defense summary judgment motions, therefore to avoid duplication that would clutter the files of the clerk of the court and create confusion for the trial court, Non-Movant filed the summary judgment evidence one time, and then iucorporated it by reference iuto each of the Non-Movant's responses to defense summary judgment motions. REPLY BRIEF OF APPELLANT Page 10

instrument which was incorporated by reference into other pleadings filed at the same time in

response to the summary judgment motions; and it was discussed in some detail in the said response

pleadings [see: CR-A-pp. 1063-1094 (response to Insurance Defendants' MSJ)]. The

STIPULATION and the RULE 11 AGREEMENT were filed as summary judgment evidence [see:

CR-D-pp. 32-41 and 18-30] even though they had previously and properly been filed with the Clerk

of the Court. 19

Among the items timely and properly ftled by Plaintiff/Non-Movant in response to the

various summary judgment motions was a Brief [see: CR-A-pp. 911-926; and see: CR-A-pp. 962-

963; and: CR-A-pp. 1031-1032] providing the trial court with guidance on some key law issues. 20

As noted above, in the "morning after" order regarding the Insurance Defendants' summary

judgment motion, the trial court did purport to "grant" an objection made by the Insurance

Defendants when, in fact, they had not even made the objection.

The hearing on the summary judgment motions was a marathon affair. 21

The specific grant of the non-existent motion (regarding the never made "objection" to

19

The Insurance Defendants never tried to withdraw or modify these documents, but seemed to simply ignore them when they filed their motion seeking summary judgment. Later, though it did not make any attempt to withdraw or modify the STIPULATION or the RULE l I AGREEMENT, the trial court simply ignored them when it made its summary judgment rulings. CR-A-pp. 1119 and 1120.

20

It is obvious that the trial court failed to follow this law, and in the process lost its way on these issues. The apparent reason that the trial court fell into error was that the Insurance Defendants, having learned that the trial judge had never tried a case of this type, went into "hyper-gear" to try to persuade the trial judge into error regarding the applicable law.

21

That hearing was attended by about ten ( 1 0) defense representatives, at least six ( 6) of whom were clearly attorneys, many of whom were from Houston, and most of whom were aligned with the Insurance Defendants. The lengthy hearing, which took place on 6 June 20 I 1, and which went on for some hours after 5:00p.m. before concluding, tired everyone; so the judge must have been tired, and may have been confused, when he signed the orders appealed from. REPLY BRIEF OF APPELLANT Page 11

Plaintiffs response to the Insurance Defendants' summary judgment) was included [but not too

clearly] in the order [see: CR-A-p. 1116] signed on the evening of 6 June 2011, but did appear

perhaps more concisely in one [see: CR-A-p. 1120] of the two "nunc pro tunc" type orders signed

sua sponte by the Court on the morning of 7 June 2011. The Plaintiff/Non-Movant did have a

proper, timely, and written pleading [see: CR-A-pp. 1112-1113] on file that specifically objected to

any consideration of any motion not properly and timely filed in writing; so there is no doubt that

Plaintiff "preserved" error. See: TRAP 33.1.

This case was mature and discovery had been completed prior to the summary judgment

hearing. It was about to be tried, on the jury docket. 22

Toward the end of the proceedings below, Plaintiff/Appellant discovered unusual problems

with a defense witness named Fautheree that suggested that there had been witness tampering, and

also suggested irregularities and improprieties in the conduct of the defendants which related directly

to the facts pertaining to their own liability, and this was brought to the attention of the Court in a

motion pleadings [see: CR-A-pp. 1126; and: 1137-1158; and: 1159; and: 1160-1163; and: 1164-

1172] asking for appropriate relief; but the Court denied the Plaintiffs motion [see: CR-A-p. 1173;

and see: APP 15; RR-B-3-p. 95, lines 1-8].

Following the final judgment of6 June 2011, a timely motion for new trial [see: CR-A-pp.

1121-1136] was filed; and later, this appeal was timely initiated. As of today, several years after the

death of the named insured and the timely notice of claim for the death benefits due under the subject

life insurance policy contract, Plaintiff/Non-Movant Bich Nguyen still has not been paid the benefits

22

The improper dismissal of the case has caused great and irreparable harm to Plaintiff, has denied her right to her day in court, and has wrongfully taken away from her the jury trial guaranteed to her under Texas law. REPLY BRIEF OF APPELLANT Page 12

that are due and owing under the terms of the subject insurance policy contract. This fact of non-

payment is not disputed. Additionally, she has been denied her constitutionally guaranteed jury trial.

The weight of the error in this case is particularly great, and in this case the weight and gross

unfairness of the error surely require reversal and remand in the interest of justice.

SUMMARY OF THE (ARGUMENT) POINTS DISCUSSED

The positions and arguments put forth by APPELLEES' BRIEF are simply, totally, non-

meritorious. That brief, and its "arguments" go outside the record 23, disregard the law, and invite

the Honorable Court of Appeals to disregard the law. Lacking any meritorious argument, the

Appellees' Brief engages in mudslinging, and the entire brief contains something of a fictional

aspect; and all the while it attempts to "gloss over" a record of significant defense misconduct. 24

It sort of appears that Appellee is trying, on this appeal, to file another summary judgment motion:

but, if so, it is late filed, and in the attempt to file it under the guise of an appeal brief Appellees have

demonstrated clearly that they concede the existence of fact issues [and fact issues require trial on

the merits]. Appellees are trying, improperly, to disregard stipulations, Rule 11 Agreements, and

admissions made in the Trial Court: having admitted the subject life insurance contract exists, they

are trying improperly to bypass all lawful conduct so as to simply w"alk away from their contract.

(ARGUMENT) POINTS DISCUSSED

A. Comments About Appellant's Brief

Appellant has previously, and timely, filed BRIEF OF APPELLANT complaining of errors

in the Trial Court proceedings, below, and seeking to reverse the Trial Court's Final Judgment of

23

Appellees' appeal lawyers may simply be confused, for they were not involved in representing Appellees in this case at the Trial Court level.

24

Appellees' appeal lawyers were not involved in this conduct, for they were not representing Appellees in this case at the Trial Court level. REPLY BRIEF OF APPELLANT Page 13

6 June 2011, and requesting remand. APPELLANT'S BRlEF follows the law, and does not go

outside the record. It is a brief which is technically, procedurally, and legally proper in all respects.

Appellant will not try now to write another "Appellant's Brief', but will instead stand upon, and rely

upon, her previously filed BRIEF OF APPELLANT.

However. in this present REPLY BRIEF. Appellant will give some response to the recently

filed APPELLEES' BRJEF because the APPELLEES' BRJEF is in many respects [both legally and

factually] so incorrect, and so far afield, that a short, concise reply containing comments about the

irregularities of the APPELLEES' BRIEF is probably necessary in order to maintain a proper,

lawful, record-based focus for this case.

B. Comments About Appellee's Brief

1. Not Meritorious

Appellees' Brief is simply, totally, non-meritorious. Having failed to bring forward any

points of error 25 or to properly or appropriately bring forth any real counter-points 26, the brief

simply purports to designate a list of so-called "issues", then to discuss them, wi!ly-nilly. 27 This

is at best a distraction; but it is improper, because it overlooks and ignores the well established Rule

25

See: TRAP 33.1.

26

See: TRAP 38.2(b).

27

In this instant case, Appellees' Brief is nothing more than an attempt at distraction: an invitation to this Court to fall into, and to perpetuate, error that the Trial Court was led into through the use of the same tactic, a defense tactic of avoiding proper issues while creating a "dust cloud" of unnecessary complexity and confusion. Much of the so-called "brief' filed by the Appellees is nothing but a bunch of conclusory statements which purport to tell this Appellate Court what the law is but fails to include citations, or which purport to make arguments about the facts of the case, but go beyond the record. This is the same sort of defense tactic that got the Trial Court judge hopelessly confused. The Trial Court judge had admitted that he did not have experience with this type of case [see: APP 1; RR-A-2-p. 4, lines 15-18]. REPLY BRIEF OF APPELLANT Page 14

which requires that an "appellee's brief should respond to the appellant's issues or points in the order

the appellant presented those issues or points." 28

2. Goes Outside The Record

The errant Appellees' Brief also goes outside the true record of the case, and does so in a

confusing and indiscriminate fashion. The controlling Rules 29 require that issues be preserved with

specificity, and a record be designated. These are important requirements; but the Appellees seem

to believe they can ignore these sorts of rules.

One rather stunning example of the confusion that results from the apparent belief of the

Appellees, as reflected in their brief, that they can disregard Rules, disregard the record, and for that

matter disregard the law, is the sequence appearing over several pages 30 in the said Appellees' Brief

in which Appellees claim that even though we are dealing with summary judgment proceedings, 31

Appellees are not required to be specific in making a record; so they are claiming that they made an

objection which they never made, but that even if they did not make it the Court can make it for

them! 32 They would not have to make this convoluted [and legally improper] argument if they

28

See: TRAP 38.2(a)(2).

29

See: TRAP 33.1; and: TRAP 34.6; and: TRAP 34.5.

30

See: APPELLEES' BRIEF at pages 18-26.

31

See. generally: TRCP 166a.

32

The Trial Court cannot [as it erroneously did in this present case] grant more summary judgment relief than was specifically requested in a proper, timely, written motion. See: Johnson v. Brewer & Pritchard, P.C., 73 S.W. 3d 193, 203-204 (Tex. 2002); Speck v. First Evangelical Lutheran Church of Houston, 235 S.W. 3d 811 (Tex. App.-Houston [1" Dist.]2007, no writ.). REPLY BRIEF OF APPELLANT Page 15

were able to point to the objection in question; but they cannot, because they never made it. 33 Do

they think that by spending several pages of their brief on convoluted arguments, they can create

enough confusion to persuade this Court to let them get by with totally disregarding rules and laws

that apply to every other litigant in Texas.

3. Disregards The Law

In fact, the Appellees' Brief just disregards the law, while trying to indicate that the decedent

[no longer alive to speak up for herself] was some kind of evil person. 34 Without going back

through everything, Appellant says that a comparison of the parties' briefs will show that in this

matter involving summary judgment procedures, which under Texas law 35 are supposed to be quite

precise, 36 the Appellees [but not Appellant] are trying to suggest that this is a case in which

"anything goes", even if that "anything" goes well beyond the record, or ignores well established

rules of law. Thus, Appellees are found suggesting in their brief that a contract which they have

admitted was issued 37 can somehow, though it is an existing contract, simply be unilaterally

33

Requests for relief in summary judgment matters must be timely, specific, and in writing. See: TRCP 166a(c) and (i) and comment to sub-part (i); see also: Clear Creek Basin Authority v. City of Houston, 589 S.W.2d671, 678 (Tex. 1979); Morris v. JTM Materials, Inc., 78 S.W.3d28 (Tex. App.- Fort Worth 2007, no pet.); Sci. Spectrum v. Martinez, 941 S.W.2d 910, 912 (Tex. 1997); Grimes v. Reynolds, 252 S.W.3d 554, 558 (Tex. App.-Houston [14th Dist.] 2008, no pet.).

34

Appellant requests this Court to contrast the brief that she filed [BRIEF OF APPELLANT, filed on 1 March 2012] which is precise in its citation to authorities and in definition of issues, and in its reference to the record, with the Appellees' Brief.

35

As discussed in detail in the brief of Appellant.

36

See: TRCP 166a.

37

See: APPELLEES' BRIEF at 5, admitting again what appellees admitted numerous times, in several ways, in the Trial Court. REPLY BRIEF OF APPELLANT Page 16

"rescinded" by Appellees at will, 38 and Appellees claim that they can simply disregard stipulations

and admissions 39 even though this is not legally permitted; and [as discussed above] Appellees seem

to think that the Court can make objections for them when they have not made objections, even in

the context of summary judgment matters, and then can grant those objections, even though the law

40 clearly prohibits this. 41

4. Invites Appeals Court to Disregard the Law

Further, the Appellees are inviting this Appeal Court to join them in their disregard of the

law: so Appellees are inviting this Appeals Court to disregard the law. 42

38

So, if they are correct, then under Texas law there is no such thing as a binding contract: for once a party becomes unhappy with the contract that it has entered into, it can simply (and unilaterally) walk away from it and dishonor it, which is exactly what Appellees have been trying to do in this case.

39

This is discussed below with some citation: clearly under Texas law they cannot do this. See. e.g.: M.J.R. 's Fare of Dallas v. Permit and License Appeal Board of Dallas, 823 S.W. 2d 327, 330-331 (Tex. App.-Dallas 1991, writ denied).

40

The Trial Court cannot, sua sponte, grant more relief than was specifically requested by a litigant [in proper form] in a summary judgment matter. See: Johnson v. Brewer & Pritchard, P.C., 73 S.W. 3d 193, 203-204 (Tex. 2002).

41

These are only some of the examples of the lawlessness of the approach taken in the Appellees' Brief; a brief which also [as discussed in a little bit more detail below] attempts to "gloss over" a pattern of highly improper conduct by the defense in the Trial Court.

42

This Appeals Court has a well earned reputation for reviewing records and law carefully, but Appellees are asking this Appeal Court to tum away from that proper approach, and to simply let Appellees "have their way" without regard to what is lawful or proper. This is simply not right for them to be asking, nor would it be right for the Court to join them in doing what they are now asking; but Appellant is confident that this Appeals Court will not be lured in the wrong direction by Appellees. REPLY BRIEF OF APPELLANT Page 17

5. Engages In Mudslinging

Much of the Appellees' Brief is simply a mudslinging fest, directed mostly at Ahn Nguyen,

now deceased and not able to speak up for herself. 43

Although the Appellees do not have their facts and dates correct, it is interesting that they

do admit [and this is factually correct although they do have their chronology a little bit off, and they

lack chronological precision as to the actual and undisputed date (later than Appellees claim) when

Ahn Nguyen was actually first informed of any diagnosis of cancer. ... ] that Ahn Nguyen was not

diagnosed with cancer until after she had applied for life insurance. 44

6. Contains Something of a Fictional Aspect

Like the main character in the movie NURSE BETTY, the "guiding spirit" of Appellees'

Brief seems to be attempting for some reason to inhabit a fiction world. A comparison of that brief

with the precise and record correct brief filed by Appellant will show the contrast between fiction

[Appellees' Brief] and reality [BRIEF OF APPELLANT]. Perhaps this fictionality is best

exemplified, in a single example, by the portion of the Appellees' Brief45 which refers to one Kirsten

43

This approach was also followed in rather brutal, blunt fashion by the defense in the Trial Court. It was wrong in the Trial Court, and it is wrong here.

44

See: APPELLEES' BRIEF atl [this shows that the Defendants/Appellees know that the diagnosis of lung cancer carne after the policy was applied for .... but it has the date of the diagnosis incorrect, for Ahn Nguyen, as shown clearly in BRIEF OF APPELLANT, did not actually receive the diagnosis until after 4 June 2008, and in fact did not receive it until after the date when the life insurance policy contract was issued .... and note, too, that the Trial Court did not grant any objection to any of Appellant's sunnnary judgment evidence, and in this connection, see generally: APPENDICES 32 [Affidavit of Dr. Tichenor] and 31 [Affidavit of Mr. Dung Kim Le] and 30 [Affidavit ofBich Nguyen]; and see also: APPENDIX 7B [STIPULATION as filed with summary judgment evidence of Plaintiff] and 7A [STIPULATION as filed with Court Clerk months before the sunnnary judgment, and actually filed on or abont 10 January 2011].

45

Appearing in that brief at page 2. REPLY BRIEF OF APPELLANT Page 18

Fautheree as a "nurse". This misrepresentation about Ms. Fautheree was made by the defense to the

Trial Court, but the defense later backed away from it in the Trial Court. Indeed, Kirsten Fautheree

is not at all a nurse, and never has been. 46 Repeatedly trying to call Fautheree, who was hidden out

by the defense, some kind of a "nurse" goes to the heart of the perfidy being practiced by the

Insurance Defendants/ Appellees in this case: it is sort of a "poster child" example of the

Defendants/ Appellees' disregard for truth 47 which they exhibited in the Trial Court, and continue

to exhibit here on appeal; and it is an example of the "bully boy" tactics that they [and Allstate in

particular] seem to "glory" in practicing. 48

7. "Glosses Over'' Serious Defense Misconduct

The Appellees' Brief simply "glosses over" serious defense misconduct. 49

8. Is It Supposed To Be Some Sort Of New Summary Judgment Motion?

Viewing the Appellees' Brief, one might ask if it is supposed to be some sort of a rather

convoluted summary judgment motion. If so, it lacks precision in many ways, but in any event it

46

See: APPENDICES 17 [Affidavit of Parmer- information in details about Fautheree, including a threat that she made .... ] and 18 [Second Affidavit of Parmer- more information about the said Fautheree, and details, including facts that show that Fautheree has never been a nurse, or a paramedical, or even a phlebotomist.. .. ].

47

And also disregard for law. 48

See: APPENDIX 28 [book excerpts- "From Good Hands To Boxing Gloves" (about Allstate's pattern of misconduct)].

49

This misconduct, which involves an apparently perjured affidavit, and improprieties involving the "witness" Fautheree, and seriously improper "RAMBO" misbehavior, and also an improper attempt by the defense to ignore its own stipulations and its own Rule II Agreement, are discussed in some detail in the BRIEF OF APPELLANT. See: BRIEF OF APPELLANT at pages 25-28 [regarding the apparent peijured affidavit] and 28-30 [regarding "witness" Fautheree] and 35-37 [regarding improper "RAMBO" misconduct of defense] and 31-35 [regarding Stipulations and Rule 11 Agreements]. REPLY BRIEF OF APPELLANT Page 19

is filed too late as summary judgment motions are filed in the Trial Court 50, and are not filed in the

Appellate Court. 51 However, if the Appellees' Brief is looked at as some kind of a tardy summary

judgment pleading, then interestingly what it seems to establish is a rather long-winded admission

by the Appellees/Defendants that there are lots of fact issues, and of course that would mean this

case should be tried to a jury, not handled through a summary judgment dismissal. 52

9. Tries to Ignore/Bypass Stipulations and Rule 11 Agreements; and

improperly suggests that an insurance company can unilaterally "Rescind"

an existing contract

The Appellees' Brief simply tries to ignore, and bypass, Stipulations and Rule 11

Agreements made by the Defense well before the time of the summary judgment hearing, and filed

with the Court, and later also included as summary judgment evidence. 53 As shown in the record

properly brought up by Appellant in this appeal 54, admissions were made on the record by counsel

for the Defense before the Trial Court more than once, and also in Stipulations and Rule 11

Agreements, making it clear that there did exist an insurance policy contract which had been issued

by the Defendants, and for which all premiums that were due had been paid; so there was a binding

contract. For some reason the defense seems to think, notwithstanding the well established Texas

50

See: TRCP 166a. 5[

See: TRAP 33.1 [preservation of error.. .. ].

52

See, generally: TRCP 166a.

53

For a detailed discussion of these Stipulations and Rule 11 Agreements, and the law regarding them, please see BRIEF OF APPELLANT at pages 31 - 35.

54

And as discussed in detail in the BRIEF OF APPELLANT at pages 31 - 35. REPLY BRIEF OF APPELLANT Page 20

law, that it can (1) simply ignore its own Stipulations and Rule 11 Agreements and admissions, and

that it can also (2) unilaterally rescind an existing contract. At the base of this case, that is what the

Defendants/ Appellees, have been trying to do all along, 55 but they should not be permitted to get

by with it. At least, they should not be permitted to get by with it unless there is a trial to jury, and

a jury by verdict lets them "get by with it". 56

In summary judgment proceedings the controlling Rule makes it expressly clear that

"admissions" and also "stipulations of the parties" are proper items of summary judgment evidence.

TRCP !66a (c). 57 The Dallas court has held that when parties stipulate to facts and documentary

evidence, "[T]hese stipulations are binding upon the parties, the trial court, and the reviewing court."

: M.J.R. 's Fare of Dallas v. Permit and License Appeal Board of Dallas, 823 S.W.2d 327,330-331

55

At page I of APPELLEES' BRIEF the Appellees admit that they unilaterally attempted to rescind the life insurance policy contract!

. 56

Interestingly, the senior partner of the law firm now handling the appeal of this case for the defense is well aware of this. He is the co-author of a treatise re-issued from year to year and relied on by many in the insurance industry, and material located in this treatise, see: CORNELL & MARTIN, TEXAS INSURANCE LAW DIGEST, at 426 [discussing Bates] (ALM Media Properties- 2011), shows quite clearly that under Texas law an insurance company [which is what the Defendants/Appellees in this case are] cannot unilaterally "cancel" or "rescind" a life instirance policy contract [which is what the Defendants/ Appellees are trying to do in this case]; and shows that if there is a question of misrepresentation on an application [which is what the defense is trying to claim] it must be determined by a jury [which is precisely why Plaintiff/ Appellant has been saying, all along that this defense claim cannot be resolved by some unilateral and high-handed "recision", or by some "summary judgment" that bypasses any jury determination].

57

The leading case of Clear Creek Basin Authority v. City of Houston, 589 S.W.2d 671, 677- 678 (Tex. 1979) makes it clear that stipulations and Rule II Agreements are binding in summary judgment proceedings. See also: Clement v. City of Plano, 26 S.W.3d 544, 549 (Tex. App.-Dallas 2000). "Stipulations are conclusive as to the facts stipulated and to all matters necessarily included therein .... As such, stipulations enjoy equal dignity with judicial admissions, which eliminates an adversary's necessity of proof and establish the admitted elements as a matter of law." Perry v. Brooks, 808 S.W. 2d 227,229 (Tex. App.-Houston [14th Dist.]l991, no writ).

REPLY BRIEF OF APPELLANT Page 21

(Tex. App.-Dallas 1991, writ denied); and see: Gamer v. Long, 106 S.W.2d 260,269 (Tex. App.-

Fort Worth 2002, no writ) (opinion by Livingston). Once a stipulation or Rule 11 Agreement has

been made by the parties, the trial and appellate courts are bound by the stipulation or Rule 11

Agreement. 58

Texas law does not favor recision of an insurance policy contract. Recision of such a

contract is an affirmative defense, and under Texas law the burden of pleading and proof is upon the

defendant, if the defendant chooses to try to assert such a defense. 59 According to a well-known

treatise, the burden on the insurance company is heavy. To-summarize what the treatise says, the

insurance company must make proofand get frndings of five (5) elements of defense to establish any

right to rescind, and of course if it can make some proof to go to a jury the insurance company will

also have to obtain findings from the jury. 60

C. The Remedy : sustain Appellant's points of error; and reverse and remand this case.

58

See: M.J.R. 's Fare of Dallas v. Permit and License Appeal Board of Dallas, 823 S.W.2d 327,330-331 (Tex. App.-Dallas 1991, writ denied); see also: Gamer v. Long, 106 S.W.2d 260,269 (Tex. App.-Fort Worth 2002, no writ) (opinion by Livingston) (when parties stipulate to specificfacts, the stipulations are binding in all trial and appellate courts, and are binding in summary judgment proceedings; it was error for trial court to ignore stipulation when considering summary judgment motion).

59

See: TRCP 94.

60

The treatise cites to case law, and also to the Texas Insurance Code, and the treatise lists the elements that must be proved by the insurance company, stating, and then listing, in pertinent part as follows: "To establish misrepresentation by the insured that will support a defense to coverage, an insurer must plead and prove five elements: (1) The making of a misrepresentation; (2) The falsity of the misrepresentation; (3) Reliance on the misrepresentation by the insurer; ( 4) Intent to deceive on the part of the insured in making the misrepresentation; and (5) The materiality ofthe misrepresentation." Kincaid and Martin, INSURANCE LITIGATION, section 11:29 (WEST).

REPLY BRIEF OF APPELLANT Page 22

1. Trial process fundamentally flawed; several errors, a number of which

independently require remand; also, effect of cumulative error.

Certainly the cumulative error, see. e.g.: Fortenberry v. Fonenberry, 582 S.W.2d 188, 190

(Tex. Civ. App.- Beaumont 1979, writrefd, n.r.e.), in this case shows that the entire process was

such that it was likely to, and did, result in the rendition of an improper judgment, and an unfair and

unjust final result, see: TRAP 44.1 (a), and thus this case must be reversed and remanded.

Indeed, and as discussed and briefed in the BRIEF OF APPELLANT, 61 several of the

individual errors discussed above were, each by themselves, so serious that any one of them, alone,

would have been sufficient grounds to require this appellate court to reverse and remand this case.

2. Justice requires appellate relief be granted.

Justice requires that appellate relief be granted now to Bich Nguyen, Appellant herein. The

record of this case, and the BRIEF OF APPELLANT 62 that has been previously and timely flied on

behalf of the Appellant, shows clearly that justice has not been done, that there was significant error

in the [summary judgment] " trial" process, and that the Plaintiff/Appellant/non-movant, Bich

Nguyen, is legally entitled to the relief she here and now seeks.

The Appellant, who brings this appeal, now respectfully requests this Honorable Court of

Appeals to consider and affirm Appellant's appeal points, each and all, and to reverse the Trial

Court's Fina!Judgment of 6 June 2011, and to set aside the "morning after" order of 7 June 2011,

61

This brief was timely filed in this appeal on 1 March 2012.

62

This brief was timely filed in this appeal on 1 March 2012, and correctly and accurately refers to the appellate and trial record, and refers properly and appropriately to the controlling law.

REPLY BRIEF OF APPELLANT Page 23

and to remand this case to the trial court for further proceedings consistent with the opinion and

rulings of this Court of Appeals, such further proceedings to include a new trial of the case before

a Jury.

CONCLUSION

As shown fully, and clearly, in the previously filed BRIEF OF APPELLANT, this error laden

case was, and is, one in which justice was not done to, or for, Appellant, who has been improperly

denied her day in Court for trial before a jury. Regrettably, but truly, this case is filled with error,

and should be sent back to the trial court.

The Court erred regarding specific rulings; and erred significantly in several ways: the "no­

evidence" summary judgment motion of the Insurance Defendants was incurably defective on its

face, not properly specific, improperly broad and general, improperly requested "law point" relief,

was fundamentally flawed, and was fatally defective. It was therefore error for the trial court to grant

that motion. The trial court erred in rulings that permitted the Insurance Defendants to use and profit

from perjured testimony. The trial court erred in rulings which protected apparent Insurance

Defendant "witness tampering" and refused necessary, limited discovery needed because of this

improper situation.

The "Rambo" tactics of the Insurance Defendants were improper, caused confusion and error,

and require reversal.

The trial court erred in its specific order that granted an "objection" never made by the

Insurance Company Defendants, and which would have been a non-meritorious objection even if

it had been made.

The trial court erred in ignoring both a STIPULATION and a RULE ll AGREEMENT, as

if they did not even exist.

REPLY BRIEF OF APPELLANT Page 24

The trial court erred, and in holding [specifically, and quite improperly] that "there is simply

no evidence in Plaintiff's response to consider," in ignoring summary judgment evidence, and in

failing to do its duty to review that evidence, disregarding procedural rules and law and in summarily

"dumping" Plaintiff/ Appellant's case by improperly giving the Insurance Defendants a summary

judgment.

The proceedings below were fundamentally unfair to Plaintiff, and resulted in a

fundamentally unfair, and manifestly unjust, outcome. The errors which are specifically pointed

out, and discussed and briefed, in this appeal brief clearly show this. Due to error in the Trial Court

proceedings, below, this Appellate Court should grant the relief sought now by Appellant, and

should reverse the Trial Court's Final Judgment of 6 June 2011, as modified by orders of 7 June

20 II, and remand this case to the Trial Court for such further proceedings, to include jury trial, as

may be needed to resolve it fairly and justly. The jury fee was timely paid in this case, and the case

should remain on the jury docket when it returns to the Trial Court.

WHEREFORE, PREMISES CONSIDERED, Appellant respectfully requests that this

Court grant the relief requested by her on this appeal, and grant her error points, each, and all; and

that this Court reverse and remand this case, overruling the Trial Court's Final Judgment of 6 June

· 2011, and remanding this case to the Trial Court for such further proceedings, to include jury trial,

as may be needed to resolve it fairly and justly; and that Appellant have such other and further

relief, whether at law or in equity, to which she may be shown to be justly entitled.

REPLY BRIEF OF APPELLANT Page25

REPLY BRIEF OF APPELLANT

Respec submitted,

Ernest Reynolds III ~ State Bar No. 168063 Law Office of Ernest (S · Reynolds III 314 Main Street, Suite 300 Fort Worth, Texas 76102-7423 817/390-0300 (telephone) 817/390-0310 (fax) Email: ereynolds3@ aol.com

ATTORNEY FOR PLAINTIFF, AND APPELLANT

• David Lee Lewallen State Bar No.: 12272100 Law Office of David Lewallen 314 Main Street, Suite 300 Fort Worth, Texas 76102 Tel: (817) 390-0300 Fax: (817)390-0310

CO-COUNSEL FOR PLAINTIFF, AND APPELLANT

Page26

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument was served in the following manner [US MAIL CERTIRRR] upon the following counsel of record:

Certified Mail No. 7011 2970 0003 4262 7957

Levon G. Hovnatanian Martin, Disiere, Jefferson & Wisdom, LLP 808 Travis, Suite 1800 Houston, Texas 77002

Signed this 21 ''day of June 2012.

Ernest (Skip) Reyn!\l~n

REPLY BRIEF OF APPELLANT Page27