Ninth Court: protective order needed for discovery request in Hurricane Ike suit

David Yates Mar. 21, 2011, 10:47am

The Texas Ninth Court of appeals found that a local judge abused his discretion by ordering Cypress Texas Lloyds to produce a discovery request without a protective order.

In February 2009, the Southeast Texas Record reported that Kevin and Chantel Newman filed a suit against Cypress Texas Lloyds, alleging they were not paid after Hurricane Ike destroyed sections of their home.

Court records show that the Newmans' home in Groves sustained roof, water, wind, contents and structural damages on Sept. 13, 2008, during Hurricane Ike. The Newmans had a policy with Cyrpess Texas Lloyds and submitted a claim for the damages.

Cypress, however, denied the Newmans' claim for the repairs of their property, even though the policy provided coverage for losses, the suit claims.

During a Feb. 14 hearing on a motion to compel discovery, Judge Bob Wortham ordered Cypress Texas Lloyds to produce certain discovery without a protective order, court papers say.

The following day, Cypress appealed the judge's ruling, arguing that it and the plaintiff had agreed to produce discovery under a protective order.

Ninth Court justices agreed, issuing a per curiam opinion on March 17.

"The record shows that the parties' agreement regarding discovery contemplated that the discovery would be made under a protective order," the opinion states. "The trial court abused its discretion by ordering discovery without a protective order in place. Accordingly, we conditionally grant affirmative relief."

A writ of mandamus will only issue if Judge Wortham fails to rescind his order.

The suit alleges Cypress breached its contract with the Newmans by refusing to pay the policy.

The Newmans are seeking unspecified actual, consequential, treble, punitive and exemplary damages, plus attorney's fees, costs, pre- and post-judgment interest and other relief to which they may be entitled.

Philip M. Kanayan, J. Steve Mostyn and Michael R. Ramsey of The Mostyn Law Firm in Houston represent them.

Woodland attorneys Thomas M. Fountain and Ann Tomino Leblanc represent Cypress.

Trial case No. D183-180
Appeals case No. 09-11-00062

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