Motion to Amend in CATHY BURNS vs. STEPHEN HULLet al| Trellis.Law

On December 05, 2023 a Complaint,Petition was filed involving a dispute between Burns, Cathy, and Hill, Stephen, Hull, Stephen, Turtle Creek Financial Group, Llc, for OTHER CONTRACT in the District Court of Dallas County.

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FILED
4/1/2024 5:18 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Treva Parker-Ayodele DEPUTY

CAUSE NO. DC-23-20228

CATHY BURNS § IN THE DISTRICT COURT
Petitioner, §
§
v. § 191st JUDICIAL DISTRICT
§
STEPHEN HULL and TURTLE CREEK §
FINANCIAL GROUP, LLC §
Respondents § DALLAS COUNTY, TEXAS
RESPONDENT TURTLE CREEK FINANCIAL GROUP, LLC’S OBJECTIONS AND
RESPONSE T0 PETITIONERS CATHY BURNS’ AMENDED VERIFIED PETITION
TO INVESTIGATE POTENTIAL CLAIMS

TO THE HONORABLE COURT:

Respondent Turtle Creek Financial Group, LLC (“Turtle Creek”) ﬁles its Objections and

Response to Petitioner Cathy Burns, (“Petitioner”) Amended Veriﬁed Petition to Investigate

Potential Claims.

I. Summary of Response

l.l This Court already provisionally denied Petitioner’s request for a pre-suit

deposition of Turtle Creek’s corporate representative(s) to investigate a potential claim arising

from a claim dispute with a nonparty insurance company related to a 2015 life insurance policy.

1.2 Petitioner now requests permission once again through its Amended Petition which

is neither veriﬁed by Petitioner herself nor supported by an afﬁdavit from Petitioner. Instead,

Petitioner relies upon an afﬁdavit from John Cracken (“Cracken Afﬁdavit”) who is not a

beneﬁciary to the policy in question.

1.3 Even if the Cracken Afﬁdavit was considered competent evidence, Petitioner still
has not established “the likely beneﬁt of allowing the petitioner to take the requested deposition to

investigate a potential claim outweighs the burden or expense of the procedure” as required by

Page 1 of 11
Rule 202.4. Petitioner fails to consider the cost, time, or burden involved in deposing an

unspeciﬁed number of Turtle Creek’s corporate representatives.

1.4 Further, the Cracken Afﬁdavit does not establish why this Rule 202 Petition will

“prevent a failure or delay of justice in an anticipated suit” as required under Rule 202.4. Even if
this Rule 202 Petition was legally permitted—and it is not—the Court still would have no grounds

to grant it under the plain reading of Rule 202.4. The Cracken Afﬁdavit instead demonstrates that

Petitioner is fully apprised of each party’s role and possesses sufﬁcient information to form a

claim. Petitioner has already identiﬁed and discovered the identities of the potential parties. If

Petitioner plans to ﬁle claims against the parties, she should do so in a lawsuit which will require

Petitioner to abide by the discovery rules.

1.4 For these reasons and as more fully explained below Turtle Creek respectfully

requests that this Court deny the Rule 202 Petition.

II. BACKGROUND
2.1 Petitioner seeks the pre-suit deposition of Turtle Creek’s corporate

representative(s) to investigate a potential claim. The Petition references a life insurance policy

purchased from nonparty Transamerica Life Insurance Company by Lawly Brooke Cracken
—

Petitioner’s mother. According to Petitioner, she was a beneﬁciary on the policy and Ms. Cracken

made payments on the policy up until her death in May 2023. Petitioner claims that Transamerica

Life Insurance Company terminated the policy in April 2023 for non-payment.

2.2 Petitioner alleges that Stephen Hull acted as Ms. Cracken’s life insurance agent and

that Turtle Creek employed Mr. Hull.

2.3 For the reasons stated below, the Petition cannot justify a ﬁnding that pre-suit

depositions are necessary, and the Court should deny Petitioner’s Petition.

Page 2 of 11
III. ARGUMENTS & AUTHORITIES

3.1 The Court should deny Petitioner’s request because (1) the Petition does not comply

with Rule 202; (2) the Petition lacks facts and evidence to support its allegations for pre-suit

discovery; and (3) the burden and expense associated with the deposition outweighs any potential

beneﬁts.

A. Rule 202 Depositjons Are Not for Rougine Use and Are Not Intended to Provide an
m-Run Around the Discovery Rules.

3.2 Texas Rule of Civil Procedure 202 authorizes pre-suit depositions only in two

distinct circumstances: (1) to perpetuate or obtain the person’s own testimony or that of any other

person for use in an anticipated suit; or (2) to investigate a potential claim or suit. Tex. R. Civ. P.

202.1. The ﬁrst reason is used when death or another event making the deponent unavailable in

the future is anticipated. The second reason is used to develop information about potential

defendants or to obtain information about the proper party to serve. To authorize a pre-suit

deposition, the trial court must ﬁnd that:

(l) allowing the petition to take the requested deposition may prevent a failure or
delay of justice in an anticipated suit, or

(2) the likely beneﬁt of allowing the petition to take the requested deposition to
investigate a potential claim outweighs the burden or expense of the procedure.

Tex. R. Civ. P. 202.4(a)(2) (emphasis added); In re Does, 337 S.W.3d 862, 865 (Tex. 2011) (orig.

proceeding) (“The intrusion into otherwise private matters authorized by Rule 202 outside a

lawsuit is not to be taken lightly”). A trial court abuses its discretion if it fails to make this required

ﬁnding. See, e.g., Patton Boggs LLP v. Moseley, 394 S.W.3d 565 (Tex. App—Dallas 2011, no

pet.) (issuing conditional writ of mandamus ordering trial court to vacate its order granting pre-

suit deposition because required ﬁnding under Rule 202.4(a) was not made).

Page 3 of 11
3.3 To prevent an “end-run” around discovery limitations, a petitioner must present

evidence to establish the facts necessary to obtain the deposition under Tex. R. CiV. P. 202.4(a).

In re Hochheim Prairie Farm Mut. Ins. Ass ’n, 1 15 S.W.3d 793, 796 (Tex. App—Beaumont 2003,

orig. proceeding); In re City of Tatum, 567 S.W.3d 800, 807 (Tex. App—Tyler 2018) (although

petitioner offered veriﬁed petition, she did not present testimony or other competent evidence to

establish that pre-suit depositions could prevent failure or delay of justice or that likely beneﬁt of

allowing depositions outweighed the burden or expense of procedure). A petition that merely

tracks the language of Rule 202 in averring the necessity of a pre-suit deposition is “insufﬁcient

to meet the petitioner’s burden.” In re Reassure America Life Ins. Co., 421 S.W.3d 165, 173 (Tex.

App .—Corpus Christi Edinburg 2013, no pet).

3.4 Although Petitioner ﬁled the Cracken Afﬁdavit along with Amended Petition,

Petitioner has produced no evidence that would support her need for a pre-suit deposition of Turtle

Creek. See In re Reassure Am. Life Ins. C0., 421 S.W.3d at 174. It is well established that, by itself,

a veriﬁed Rule 202 Petition is not competent evidence to support a pre-suit deposition. In re East,

476 S.W.3d 61, 67-68 (Tex. App—Corpus Christi, orig. proceeding). Veriﬁed pleadings are

likewise not considered competent evidence to prove the facts asserted in the pleading. Laidlaw

Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995). Here Petitioner

herself did not ﬁle a veriﬁcation or afﬁdavit; instead her attorney signed the veriﬁcation and John

Cracken, who is not a beneﬁciary under the policy, provided the afﬁdavit.

However, the arguments of counsel are not evidence. Potter v. GMP, LLC, 141 S.W.3d

698, 704 (Tex. App—San Antonio 2004, pet. dism’d). And the Cracken Afﬁdavit highlights why

a pre-suit deposition is unnecessary. Cracken, an attorney licensed in the State of Texas, lays out

Petitioner’s case and identiﬁes the nexus of her potential claims against Mr. Hull and/or TCFG;

Page 4 of 11
speciﬁcally, that Mr. Hull “did not help” Brooke Cracken when “it would have been easy for him

to do so.” Petitioner and Cracken “want to know why”. Petitioner and Cracken’s curiosity do not

warrant the Court ordering Mr. Hull and TCGF sit for a pre-suit deposition. Regardless, a

deposition is unnecessary to answer that question as demonstrated in Exhibit A to this response.
Neither Hull nor TCFG had an active agent contract with TLIC in 2023.1 Accordingly, Hull had

no involvement with or notiﬁcation of premium billings, payments, lapses or cancelations related

to the policy in question. Here, Petitioner has not met her burden; therefore, Petitioner’s Rule 202

Petition should be denied.

1. Petitioner’s Rule 202 Petition Fails the Required Burden-Beneﬁt Test

3.5 Under Rule 202.4. the Court must order a pre-suit deposition to be taken, if, but

only if it ﬁnds that: (l) allowing the petitioner to take the requested deposition may prevent a

failure or delay of justice in an anticipated suit; or (2) the likely beneﬁt of allowing the petitioner

to take the requested deposition to investigate a potential claim outweighs the burden or expense

of the procedure. Here the Court cannot ﬁnd that Petitioner has established either element. Tex. R.

Civ. P. 202.4(a)(1)-(2).

3.6 Starting with the beneﬁt/burden analysis in Rule 202.4(a)(2), the Court should ﬁnd

that Petitioner cannot explain any signiﬁcant beneﬁt of allowing pre-suit depositions other than

evaluating a potential claim. This is not enough. Texas Courts have held that “a petition that merely

tracks the language of Rule 202 in averring the necessity of a pre-suit deposition, without including

any explanatory facts regarding the anticipated suit or the potential claim, is insufﬁcient to meet

the petitioner’s burden.” In re Reassure America Life Ins. C0., 421 S.W.3d 165, 172 (Tex. App.—

Corpus Christi 2013, orig. proceeding).

1
Exhibit A, Afﬁdavit of Hull

Page 5 of 11
3.7 Here, the Petition merely tracks the language of Rule 202 and presents no

compelling beneﬁts of pre-suit litigation. Besides making a blanket statement that “Petitioner

believes she may have a cause of action under the Texas Deceptive Trade Practices Act and/or the

Texas Insurance Code against Mr. Hull and/or TCFG in her role as a third-party beneﬁciary of the

Policy,” Petitioner fails to explain why a deposition would be beneﬁcial and outweigh the

depositions’ burden or expense. Rule 202.4(a)(2); In re Reassure Am. Life Ins. Co., 421 S.W.3d at

173-74 (holding trial court abused its discretion granting petition for pre-suit deposition because

petitioner failed to satisfy the requirements of Rule 202). Petitioner has not met her burden to show

the burden of onerous pre-suit discovery outweighs any potential beneﬁt.

3.8 Further, allowing the depositions will prejudice Turtle Creek and all other potential

defendants by providing Petitioner with a strategic advantage that the general discovery rules do

not permit. In the typical course of litigation, Petitioner will ﬁle her petition and apprise the named

defendants of her allegations. Written discovery would then ensue, and depositions would take

place once the parties are apprised of their opponents’ respective positions. Petitioner is seeking

to circumvent due course of litigation by deposing Turtle Creek and Hull before placing her

allegations before them, and prior to allowing them to conduct written discovery into Petitioner’s

claims and allegations. Texas courts have rejected this exact potential beneﬁt as sufﬁcient to justify

the burden of a pre-suit deposition. See In re Hewlett Packard, 212 S.W.3d 356, 362 (Tex. App.—

Austin 2006, orig. proceeding). This is because the argument could conceivably be used in every

case, as “the expense of taking a limited number of depositions can almost always be argued to be

less than the expense of ﬁling and prosecuting a lawsuit.” In re Hewlett Packard, 212 S.W.3d at

362. Though the knowledge of whether a petitioner has legitimate claims against a respondent

Page 6 of 11
could likely beneﬁt the petitioners, “this beneﬁt, alone, does not outweigh the burden imposed on

the potential deponent.” Id.

3.9 Furthermore, in Paragraph 5.01, Petitioners seek to depose Turtle Creek and Hull

on overbroad topics such as “their course of dealings and with obligations” to Ms. Cracken and

Transamerica Life Insurance Company. Petitioner’s request for the depositions of Turtle Creek’s

representatives is nothing more than a ﬁshing expedition. Just as ﬁshing expeditions are prohibited

in discovery related to an ongoing lawsuit, they are also prohibited in the context of a Rule 202

petition.2 Accordingly, Petitioner’s request to take the depositions of Turtle Creek pre-suit should

be denied.

2. Turtle Creek’s pre-suit deposition does not prevent a failure or delay
of justice in Petitioner’s claims against Turtle Creek or Hull.

3.10 When the purpose for seeking a pre-suit deposition is to obtain testimony for use in

an anticipated suit under Tex. R. Civ. P. 202.1(a), the party seeking the pre-suit deposition must

plead and prove that the requested deposition may prevent a failure or delay of justice. Tex. R.

Civ. P. 202.4(a)(1); In re East, 476 S.W.3d 61, 68 (Tex. App—Corpus Christi, Edinburg, Aug.

22, 2014). The trial court’s order granting the request must also contain a ﬁnding of fact stating

that “allowing the petitioner to take the requested deposition may prevent a failure or delay of

justice in an anticipated suit.” Id.; Tex. R. Civ. P. 202.4(a)(1).

3.11 Here, Petitioner does not plead or allege that the depositions sought may prevent a

failure or delay of justice in an anticipated suit. Accordingly, this Court cannot enter a ﬁnding of

fact that the deposition of Turtle Creek’s corporate representatives may prevent a failure or delay

of justice in an anticipated suit, as required by Tex. R. Civ. P. 202.4(a)(1). In re Denton, No. 10-

2
See TEX.R CIV. P. 192.4; K Mart Corp. v. Sanderson, 937 S.W.2d 429, 431 (Tex. 1996) (holding that discovery
cannot be used to “ﬁsh” for evidence).

Page 7 of 11
08-00255-CV, 2009 WL 471524, at *2 (Tex. App—Waco Feb. 25, 2009, orig. proceeding) (mem.

op.) (trial court’s required ﬁnding under Rule 202.4(a) must match petitioner’s pleaded reason for

seeking pre-suit deposition under Rule 202.1); see also Moseley, 394 S.W.3d at 565 (same).

IV. PRAYER
4.1 Based on the foregoing, Respondent Turtle Creek Financial Group, LLC

respectfully requests that this Court deny Petitioner Cathy Burns (“Petitioner”) Petition to

Investigate Potential Claims. Turtle Creek Financial Group, LLC further requests that this Court
award such other and additional relief to which they may be entitled.

Respectfully submitted,

THOMPSON, COE, COUSINS & IRONS, L.L.P.

By: /s/ Thomas M Honm, II
Thomas M. Horan, II
State Bar No. 24063 938
Thomas A. Culpepper
State Bar No. 05215650

Plaza of the Americas,
700 N. Pearl Street, Twenty-Fifth Floor
Dallas, Texas 75201 -2832
Telephone: (214) 871 -8200
Telecopy: (214) 871-8209
Email: thoran@thompsoncoe.com
Email: tculpepper@thompsoncoe.com

ATTORNEYS FOR TURTLE CREEK
FINANCIAL GROUP, LLC

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was served Via electronic
service on this 1“ day of April, 2024 on all counsel of record.

/s/ Thomas M. Horan II
Thomas M. Horan II

Page 8 of 11
CAUSE NO. DC-23-20228
CATHY BURNS, § IN THE DISTRICT COURT OF

Petitioner; g

V. g DALLAS COUNTY, TEXAS
STEPHEN HULL and TURTLE CREEK g
FINANCIAL GROUP, LLC, §

Respondenm g 191“ JUDICIAL DISTRICT

AFFIDAVIT 0F STEPHEN HULL
BEFORE ME, the undersigned Notary Public, on this day, came and personally appeared,

Stephen Hull, in the above entitled and numbered cause, who, upon oath, stated:

1. My name is Stephen Hull. I am over the age of 18, am of sound mind, and am
otherwise capable of making this afﬁdavit. The facts stated within this afﬁdavit are within my

personal knowledge and are true and correct.

3. Transamerica Life Insurance Company (hereinafter referred to as “Transamerica”)
terminated its license agreement with me effective August 10, 2019 for lack of productivity as to

life insurance policies for the last twelve (12) month period, ending my business relationship with

Transamerica.

4. Based on the termination of the license agreement with Transamerica, I have not

received any information as to any policies with Transamerica since August 10, 2019.

5. Further, since I am an insurance agent, I had no involvement with or notification of

premium billings, premium payments, policy notiﬁcations, or policy lapses on any policies with

Transamerica nor Lawly Brooke Cracken’s premium billings, premium payments,
policy

notifications, or policy lapses with Transamerica.

FURTHER AFFIANT SAYETH NOT.

31799284.1:10919-0113

Page 9 of 11 Exhibit A - Page 1 of 3
42%..
Stephé’n Hull

STATE OF TEXAS
COUNTY OF DALLAS

BEFORE ME, the undersigned authority, on this day personally appeared Stephen Hull, who, upon
oath, subscribed his name to the foregoing instrument and swore before me on this day that tlm
information set forth in the foregoing afﬁdavit is true and correct.

SWORN AND SUBSCRIBED BEFORE MB on this I 5/ day of March, 2024, to certify which
witness my hand and seal of office.

MORGAN capes
MyNotarylD#134767162
NOTARY PUBLIC
Expires February 16.
2028 In and for the State of Texas

My Commission expires O ;/( b5 202/ Y

31799284.1:10919-0113

Page 10 of 11 Exhibit A - Page 2 of 3
8/28/23. 9:20 AM Mail - Stephen Hull - Outlook

ETRANSAMERICA‘
PW
433.1 lipid; Rmd'Nl-Z. (fed-l IA 52H“I

Robert Hull
2112 Grove Park Ln
Richardson. TX 35050

7/8/19

RE: Termination of mm] [3664 for Lilia Sales

Robert:

A review nf'our records indicates that you have not had any placed life insurance policies in the past l2
months. In light ul'lluit, wt: are taking ﬂu: numssury sings in inanimate your ugrucmum with Tmnsanmriuu
Life insurance Co. due to lack of junducti rm- This termination is eﬁ'ective ﬁll M019. This termination
only impacts the agreement 1hr the agent number listed in the above subject line. An)? othcr agreements
11m you may have in place for annuities, Medicare Suplﬂuneut, healﬂi, or life insurance with other
channals is not impacted by this lamination.

Please. be advised that your agreement may be reinstated if new business is received within thirty days
Rom the date of this letter. After the thirty days, full entrusting papu'woxk and pml‘ofmw busimss will
hereqm'md in under far you In mmﬂucL

httpszlloutlook.ofﬁcemrnlmallﬁdlAAQkAG RjODE1 OG|5LWE1 N2|tNDA4Yy1iM2UwLTJmYzcOZDFmYZFkNAAQADﬁ/VOKSJgm10rFH HTw2PdGO%3DI . . . 1/1

Page 11 of 11 Exhibit A - Page 3 of 3
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.

Vivian Demianiw on behalf of Tommy Horan
Bar No. 24063938
vdemianiw@thompsoncoe.com
Envelope ID: 86168203
Filing Code Description: Objection
Filing Description: RESPONDENT/TURTLE CREEK
OBJECTIONS/RESPONSE/PETITIONER AMD PETITION
Status as of 4/3/2024 11:03 AM CST

Associated Case Party: TURTLE CREEK FINANCIAL GROUP, LLC

Name BarNumber Email TimestampSubmitted Status
Jackie Beavers jbeavers@thompsoncoe.com 4/1/2024 5:18:21 PM SENT
Thomas Horan thoran@thompsoncoe.com 4/1/2024 5:18:21 PM SENT
Vivian Demianiw vdemianiw@thompsoncoe.com 4/1/2024 5:18:21 PM SENT
TC Records ezfile@thompsoncoe.com 4/1/2024 5:18:21 PM SENT
Thomas Culpepper tculpepper@thompsoncoe.com 4/1/2024 5:18:21 PM SENT

Associated Case Party: STEPHEN HULL

Name BarNumber Email TimestampSubmitted Status
James Parish 24071830 Jparish@wshblaw.com 4/1/2024 5:18:21 PM SENT
Martha Blanco mblanco@wshblaw.com 4/1/2024 5:18:21 PM SENT
Firm Admin texasdocket@wshblaw.com 4/1/2024 5:18:21 PM SENT
William Jaynes 24137609 wjaynes@wshblaw.com 4/1/2024 5:18:21 PM SENT
Tonya Shanz TShanz@wshblaw.com 4/1/2024 5:18:21 PM SENT

Associated Case Party: CATHY BURNS

Name BarNumber Email TimestampSubmitted Status
REBECCA LNEUMANN RNEUMANN@TEXTRIAL.COM 4/1/2024 5:18:21 PM SENT

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December 05, 2023

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