THE SUPREME COURT OF TEXAS CASE NO. 10-0371
FIVE STAR INTERNATIONAL HOLDINGS INCORPORATED and F-STAR SOCORRO, LP, Petitioners/Defendants, v. THOMSON, INC., f/k/a THOMSON CONSUMER ELECTRONICS, INC., Respondent/Plaintiff. PETITION FOR REVIEW
Randy Lee Attorney at Law State Bar No. North A Street, Building 2-104 Midland, Texas 79705 Telephone: (432) 638-0895 Facsimile: (915) 224-1044

COUNSEL FOR PETITIONERS

IDENTITY OF PARTIES AND COUNSEL So that the members of this Court may determine disqualification and recusal, Petitioners Five Star International Holdings Incorporated and F-Star Socorro, LP, certify that the following is a complete list of the parties, attorneys, and other persons with a financial interest in the outcome of this suit: PARTIES: Petitioners Five Star International Holdings Incorporated, a Defendant and Appellant below. F-Star Socorro, L.P., a Defendant and Appellant below.
Respondent Thomson, Inc., formerly known as Thomson Consumer Electronics, Inc. (Thomson), the Plaintiff and Appellee below. COUNSEL: Petitioners Counsel Randy Lee, trial and appellate counsel for Five Star International Holdings Incorporated and F-Star, 3300 North A Street, Building 2-104, Midland, Texas 79705, e-mail randyleeattorney@gmail.com, phone (432) 638-0895, fax (432) 224-1044 Respondents Counsel
Mark N. Osborn and Shelly Rivas, trial and appellate counsel for Thomson, attorneys in Kemp Smith, LLP, 221 North Kansas Street, 17 th Floor, El Paso, Texas 79901, phone (915)533-4424, fax (915)546-5360
TABLE OF CONTENTS IDENTITY OF PARTIES AND COUNSEL...i TABLE OF CONTENTS... ii INDEX OF AUTHORITIES... iii STATEMENT OF THE CASE.... 1 STATEMENT OF JURISDICTION... 3 ISSUES PRESENTED.... 3 STATEMENT OF FACTS... 4 SUMMARY OF THE ARGUMENT.. 8 ARGUMENT.... 9 PRAYER.... 19 CERTIFICATE OF SERVICE... 20
INDEX OF AUTHORITIES CASES Carrasco v. Stewart, 224 S.W.3d 363 (Tex. App.El Paso 2006, no pet.).. 10 City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005)... 14 Cooper Tire & Rubber Company V. Mendez, 204 S.W.3d 797 (Tex. 2006)... 13 E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995).. 13 Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713 (Tex. 1998)... 13 Gilgon v. Hart, 893 S.W.2d 562 (Tex. App.--Corpus Christi 1994, writ denied). 16 Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805 (Tex. 2002)... 10 Helena Chem. Co. v. Wilkins, 47 S.W.3d 486 (Tex. 2001)...10, 13 Serrano v. Union Planters Bank, N.A., 162 S.W.3d 576 (Tex. App.--El Paso 2004, pet. denied).. 10 Tex. Dept of Human Servs. v. E. B., 802 S.W. 2d 647 (Tex. 1990)... 16 Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006)... 16 Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990)... 17
RULES Tex. R. App. P. 53.1.... 3 Tex. R. Civ. P. 193.4(c)... 15 Tex. R. Civ. P. 193.6... 15 Tex. R. Civ. P. 194.2(f)(4)(A)... 14 Tex. R. Evid. 803(6)... 18 Tex. R. Evid. 803(8).... 18
STATEMENT OF THE CASE This case is based on claims for damages under a written lease. Trial was to a jury in the 41st District Court of El Paso County, Texas, which found that the Plaintiff tenant, Thomson, overpaid the Defendant landlord, F-Star, for real estate taxes and common area expenses from 1998 through 2005. On March 16, 2007, Visiting Judge Sam M. Paxson rendered a Final Judgment, which awarded Thomson recovery against F-Star for $979,029 in overpaid real estate taxes, $673,974 in overpaid common area expenses and $315,000 in attorneys fees and expenses. [3 CR 1070-1072]1. In addition, the Final Judgment declared that, as a matter of law, Thomson was entitled to receive the benefit of all property tax exemptions and abatements applied to any portion of the real property in question. [3 CR 1071]. F-Star Socorro, LP, and Five Star International Holdings Incorporated (collectively, F-Star) were the Appellants in the appeal of the Final Judgment, which was taken to the Eighth District Court of Appeals sitting in El Paso, Texas. Thomson was the Appellee below.

There are three (3) volumes of the Clerks Record in this appeal. As used herein, Clerks Record references are to specific volume and page of the Clerks Record (e.g., 3 CR 1070). There are nine (9) volumes of the Reporters Record. Volumes 8 and 9 are the Exhibits. As used herein, Reporter Record references are to specific volume and page of the Reporters Record (e.g., 2 RR 52) or to the specific Plaintiff or Defendant Exhibits (e.g., PX 2, Dx 1). References to documents in the Appendix to this Petition are by Exhibit number.
The March 31, 2010 court of appeals opinion was authored by Eighth District Chief Justice David Wellington Chew. Justices Ann McClure and
Guadalupe Rivera also joined in the opinion, which was unanimous. As yet, there is no reported citation for the court of appeals opinion, other than its Westlaw cite, which is 2010 WL 1226056. publication. The court of appeals affirmed the Final Judgment in all respects. No motion for rehearing was filed in the court of appeals. The opinion has not yet been released for
STATEMENT OF JURISDICTION This is a petition for review of a final judgment of a court of appeals. The jurisdiction of the Texas Supreme Court is thus allowed under Tex. R. App. P. 53.1. ISSUES PRESENTED
ISSUE 1 Did the court of appeals improperly affirm the trial courts judgment in favor of Thomson for overpaid common area expenses since Thomsons expert testimony on the amount of such expense was inadmissible, the witness was not qualified, and his opinions did not have a reliable foundation or a proper basis? ISSUE 2 Did the court of appeals improperly affirm the trial courts judgment in favor of Thomson allowing Thomson recovery of its attorneys fees since Thomson failed to timely supplement its response to F-Stars request for disclosure seeking the basis of its attorneys fees experts opinions? ISSUE 3 Did the court of appeals improperly affirm the trial courts judgment in favor of Thomson for attorneys fees since Thomson failed to segregate its attorneys fees between recoverable amounts and those attorneys fees incurred in connection with other proceedings? ISSUE 4 Did the court of appeals improperly affirm the trial courts judgment in favor of Thomson for overpaid taxes in the amount awarded by the jury in answer to Question Number 2, since there is no competent, admissible evidence supporting that amount and the jurys answer is not supported by legally or factually sufficient evidence? 3
STATEMENT OF FACTS The court of appeals correctly stated the nature of the case. However, the following additional facts are pertinent to the issues raised in F-Stars petition for review: A. Under the lease, Thomson paid monthly rent, plus additional rent in the amounts of taxes and common area expenses. Under Paragraph 11 of the lease in question, as Additional Rental, Thomson was obligated to pay all taxes (both general and special), assessments, or governmental charges (hereinafter taxes) lawfully levied or assessed against the Facility, which included the entire 67 acre tract. [Px 5, page 5, 11]. As Additional Rental, Thomson also had to pay the cost of operating and maintaining the common area, as more fully described in Paragraph 8 of the lease. [Px 5, page 2, 5.2 (first paragraph 5.2)]. Thomsons trial representative, Glen Ernst, admitted that the Additional Rental applied to both the building itself and the 67 acres of land covered by the lease. [5 RR 86-87]. Paragraph 8.1 of the lease obligated Thomson to pay the expenses incurred by F-Star in operating and maintaining the common area. [Px 5, page 4].

Thomson admitted that expense for operating and maintaining the common area properly included a management fee. [5 RR 83-84, 88].
B. Over F-Stars objections, Thomsons experts were allowed to give opinion testimony on common area expenses, management fees and attorneys fees. a. Common area expenses and management fees.
Over F-Stars objections, the trial court allowed the opinion testimony of a San Antonio, Texas property manager named Jerome Steuart (Steuart), regarding common area expenses and management fees. Thomson offered Steuart as an expert on those topics. [6 RR 82]. F-Star filed two (2) pre-trial motions by F-Star to exclude such testimony, objecting that it was speculative, without foundation and not properly the subject of expert opinion. [Appendix Exhibits 5, 6]. The trial court denied these motions and allowed Steuart to provide expert testimony on those topics. [6 RR 63]. There is no other testimony in the record establishing that any of F-Stars common area expense charges were over-market or unreasonable. F-Stars
representative, Jerry Ayoub (Ayoub), testified that F-Stars management services and common area expenses covered much more than just the items assumed by Steuart [4 RR 117-121], and that such charges were, if anything, below market rather than above market. [4 RR 119]. b. Attorneys fees and costs.
F-Star served a pre-trial request for disclosure upon Thomson. [3 CR 10431044]. In addition, during the deposition of Thomsons designated representative taken September 2, 2005, F-Star specifically requested production of copies of 5
Thomsons attorney bills, which Thomson agreed to provide. [3 CR 1035]. On December 8, 2006, the day the trial began [3 CR 1070], Thomson first produced copies of its unedited attorneys bills for the services of its attorneys during the period from February, 2001 through October 31, 2006 [PX 67]. Earlier, Thomson had produced only edited copies of those bills, claiming that attorneyclient privilege protected the substance of the documents from disclosure. The information contained in the newly-produced documents consisted of detailed descriptions of services rendered by Thomsons counsel, including multiple attorneys, legal assistants and other support persons, over a period of more than 5 years. [Px 67]. Osborn admitted that, without looking at the attorney bills, he could not say what was done by any particular attorney, or on what day, or how long it took. [6 RR 106]. Osborn also admitted that the fees about which he testified included
charges for services and costs in connection with unrelated suits to which Thomson was not a party, as well as other suits in other courts to which Thomson was also a party. [6 RR 106-110]. In his testimony, Osborn further admitted that he did not segregate any of those charges and costs from the attorneys fees and costs about which he testified at trial. [6 RR 110]. The jurys answers to Question 5 were the exact amounts of attorneys fees and costs which Osborn offered as his opinions on those topics. [6 RR 105]. 6

C. The amounts of real estate taxes owed by Thomson were shown on the City of El Pasos tax bills for the property. The City of El Paso is the tax collector for all taxing authorities with jurisdiction over the property in question. It assesses the taxes, sends the tax bills and collects tax payments. [Deposition of El Paso Central Appraisal District (EPCAD) representative Rick Medina (Medina), September 18, 2005, page 53]. While EPCAD appraises the property and certifies the appraised value to the City, it plays no role in assessment of tax or collecting taxes. [Deposition of Medina, September 18, 2005, pages 53-54, 56-58]. The City of El Paso tax bills for the years 1999 through 2005 are in evidence as Plaintiffs Exhibits 7 and 14-20. The amounts of tax paid by Thomson to F-Star as additional rent for the same years are shown in Plaintiffs Exhibit 6. A comparison of the amounts of taxes levied in each of those years, with the amounts paid by Thomson for each of those years, is contained in Appendix Exhibit 7. It shows that, at a maximum, Thomson paid no more than $519,727.77 in taxes above the amounts the City of El Paso billed F-Star during those years. D. F-Star challenged Thomsons evidence of tax overpayments. Over F-Stars objections, the trial court admitted Plaintiffs Exhibit 2, a document entitled TAX ESTIMATES FOR THOMSON, which reflected EPCADs estimate of taxes owed on an unidentified property for the years 1998 through 2004. [4 RR 60]. It was prepared by Medina [6 RR 49], who testified that 7
Plaintiffs Exhibit 2 was not a document ordinarily prepared by EPCAD in the course of its business, and that it was not an official record of EPCAD. [Deposition of Medina, September 18, 2005, pages 53, 58]. F-Star objected that Plaintiffs Exhibit 2 was unauthenticated hearsay, and that Ayoub (the witness through whom Thomson obtained its admission) did not know the source or validity of the numbers it reflected. [4 RR 58-60]. SUMMARY OF THE ARGUMENT There is no competent evidence of any overpayments of common area expenses by Thomson, in excess of the amounts owed by Thomson under the lease, for any of the years in question. There is no competent evidence that any of the common area expenses charged by F-Star were unreasonable, over-market or otherwise not permitted by the lease. Thomson failed to timely supplement its discovery response regarding its expert witness testimony on attorneys fees, and failed to segregate attorneys fees regarding this matter from those incurred in connection with other matters. As a result, there is no competent evidence of any amount of attorneys fees recoverable by Thomson in this case. There is no competent evidence of any overpayments of taxes by Thomson, in excess of the amounts owed by Thomson under the lease, for any of the years in question. 8

ARGUMENT A. Reasons for Texas Supreme Court to exercise jurisdiction. This case involves a challenge to the opinion testimony of an unqualified expert witness. In many recent opinions, this Court has addressed the subjects of expert witness qualifications and the sufficiency of foundation needed to support expert opinion testimony. The opinion and judgment of the court of appeals are contrary to the holdings and principles espoused by this Court on this important topic, and this Court should correct the rulings of the court of appeals on this topic. Additional reasons for this Court to exercise jurisdiction are to correct the erroneous rulings of the court of appeals with respect to the need for segregation of attorneys fees, and with respect to a partys obligation to timely disclose expert witness materials in order to use the testimony of an expert at trial. The court of appeals opinion and judgment on both of these topics are contrary to holdings of this Court and other courts of appeal on both of these important topics. B. Thomsons expert witness testimony on common area expenses was inadmissible. In the court of appeals, F-Star contended that, as a matter of law, Thomson was not entitled to any recovery for alleged overpayments of common area expenses because there was no competent evidence supporting the jurys answer to Question Numbers 3 or 4. The court of appeals disagreed, holding that the
testimony of Thomsons sole witness on the amount of such alleged overpayments 9
- - its designated expert witness Jerome Steuart (Steuart) - - was reliable and thus admissible. [Opinion at 10]. 1. Standards of Review.
A no evidence issue presents a question of law which challenges the legal sufficiency of the evidence to support a particular fact finding. Serrano v. Union Planters Bank, N.A., 162 S.W.3d 576, 580 (Tex. App.--El Paso 2004, pet. denied). As the party without the burden of proof who suffered an unfavorable finding, FStar properly challenged the jurys answers to Questions 3 and 4 as having no evidence to support the finding. Carrasco v. Stewart, 224 S.W.3d 363, 367 (Tex. App.El Paso 2006, no pet.). The trial court's determination as to whether to admit expert opinion testimony is subject to review for abuse of discretion. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001). Admission of expert opinion testimony that does not meet the reliability requirement is an abuse of discretion. GuadalupeBlanco River Auth. v. Kraft, 77 S.W.3d 805, 810 (Tex. 2002). 2. The trial court abused its discretion in admitting Steuarts testimony as expert opinion.
Steuart was Thomsons sole witness on the issue of the amounts of common area expenses owed by Thomson under the lease. The only limitations in the lease were that the expense must be for operation or maintenance of the common area, as 10

more fully described in Paragraph 8 of the lease [Px 5, page 4, 5.2], or must be an actual expense for operation or maintenance of the building or the land [Px 5, page 2, 5.2], and that the charges could not be above market or non-competitive. [Px 5, Paragraph 8.1, second section, page 4]. Steuarts purported expert opinion testimony concerning common area expenses and management fees is entirely unfounded and unreliable: (1) (2) He never managed any locations in El Paso [6 RR 84]; He was never involved in any way in the management of any industrial properties in El Paso [6 RR 84]; He never tried to hire an El Paso property management company [6 RR 89] There are no reference books that one could look at to determine whether or not a common area charge is reasonable [6 RR 85]; There are no industry standards or guidelines that would provide someone with information on what a reasonable common area charge is or is not [6 RR 85]; There are no Texas statutes, and no rules or regulations, that set or specify what a minimum or maximum or reasonable common area charge would be [6 RR 85]; He did not speak to anyone with Thomson about its expectations or intentions regarding the payment of common area expenses or management fees [6 RR 87-88]; He did not speak with Thomsons tenant representative who negotiated the lease for Thomson, or even consider what he had to say, in order to see what he understood about the lease provisions for common area expenses or management fees [6 RR 89-90]; 11
He did not make any inquiry of the management company in this case to determine what level of service it actually provided to the tenant as a part of its management fee [6 RR 88];
(10) He did not know what the specifics of the building in question were, as far as its operating requirements or characteristics [6 RR 88] (11) He did no outside inspection of any kind, and had never seen the building in question, or even a picture of it [6 RR 88]; (12) He has never testified regarding opinion testimony about common area expenses in any other case [6 RR 85]; (13) He has never given a report to anyone about what a reasonable common area charge would be [6 RR 85]; and (14) He was not aware of anyone else that has ever given any in-court or expert opinion testimony on what a reasonable common area charge would be [6 RR 85]. Steuart could not point to any published industry facts, figures or standards to set common area expenses or management fees. Unlike other non-scientific subjects of opinion like attorneys fees and land appraisals, there are no established industry standards or measures to use for guidance in determining whether common area expenses or management fees are reasonable2. F-Star repeatedly asked the trial court to exclude Steuarts testimony because it was speculative, without foundation and not properly the subject of expert opinion [Appendix Exhibits 3, 4], but he was allowed to testify concerning

For example, appraisers are guided by widely recognized and accepted methods of valuation (income method, replacement cost method, etc.), and attorneys are guided by applicable ethical rules as well as a host of state and federal court cases which clearly define the factors to be considered in determining a reasonable fee.
the reasonableness of common area expenses and management fees owed by Thomson under the lease. [6 RR 63, 82]. In deciding whether an expert is qualified, the trial court must first determine whether the purported expert truly has expertise concerning the actual subject about which an opinion is offered. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 719 (Tex. 1998). Opinion testimony is admissible only if (1) the expert is qualified, and (2) the testimony is relevant and based on a reliable foundation. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001). In Cooper Tire & Rubber Company V. Mendez, 204 S.W.3d 797, 801 (Tex. 2006), this Court stated: In Gammill, we recognized that the Robinson [E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995)] factors cannot always be used in assessing an expert's reliability, but "there must be some basis for the opinion offered to show its reliability." 972 S.W.2d at 726. We further made clear in Gammill that the Robinson relevance and reliability requirements apply to all expert testimony. Id. The trial court is not required "to admit opinion evidence which is connected to existing data only by the ipse dixit of the expert." Id. at 727 (quoting Joiner, 522 U.S. at 146). If the expert brings only his credentials and a subjective opinion, his testimony is fundamentally unsupported and therefore of no assistance to the jury. Havner, 953 S.W.2d at 712. This quote applies directly to Steuart, who had only a subjective opinion, without any basis for his opinions other than what he may have believed. Steuarts opinion testimony was not based on any market data, any accepted methodology, any industry standards or anything other than this is what I think. 13 His are
exactly the kind of ipse dixit of the expert opinions which help no one, and which this Court has continually stricken as unreliable and, thus, inadmissible. F-Stars no-evidence challenge should have been sustained. The record shows the complete absence of any facts, other than Steuarts whimsical testimony, to support the answers to Questions 3 and 4 - - the existence and amounts of alleged overcharges - - and the jury was barred by rules of law and evidence from giving weight to Steuarts testimony. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005); Carrasco v. Stewart, supra. C. Thomson cannot recover attorneys fees or costs. Thomsons sole evidence of its reasonable attorneys fees and related costs was the testimony of its trial counsel, Osborn, who reviewed all billing statements before they were sent to Thomson. [6 RR 97]. He admitted that, without looking at the statements, he could not say what was done by any particular attorney, or on what day, or how long it took. [6 RR 106]. During discovery in the case, F-Star submitted a request for disclosure to Thomson [3 CR 1043-1044], requiring Thomson to produce all documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the experts testimony. Tex. R. Civ. P. 194.2(f)(4)(A). The trial court twice considered FStars motion to exclude testimony on Thomsons attorneys fees and costs [3 CR 14

1034-1044; 4 RR 4-7; 6 RR 67-74], which was denied on December 13, 2006. [6 RR 74]. Over F-Stars objections, Osborn was allowed to testify about his opinion on reasonable attorneys fees and costs [6 RR 92-112]. Texas Rule of Civil Procedure 193.4(c) provides that material or information withheld from discovery under a claim of privilege cannot be used at trial without timely amending or supplementing the response to the discovery requests seeking that information. Thomsons production of only admittedly edited versions of its attorneys fee statements bills prior to December 8, 2006, clearly amounts to the withholding of material and information under a claim of privilege. Texas Rule of Civil Procedure 193.6 provides that materials and information not timely supplemented at least 30 days prior to trial in response to discovery requests cannot be used at trial unless the party seeking to introduce that evidence establishes the applicability of one of two exceptions - - good cause for its failure to timely supplement, or proof that its late disclosure did not unfairly surprise or prejudice F-Star. During trial, Thomson was able to mark and produce the
unedited versions of the attorney statements the same day its failure to do so was mentioned. Its delay in doing so is inexcusable because it had agreed to produce its attorney bills at least 15 months earlier. [3 CR 1035]. It was Thomsons
burden to prove an exception, but it made no effort to prove either of them. This Court continues to follow the long-standing rule that if any attorneys 15
fees relate solely to a claim for which such fees are unrecoverable, a claimant must segregate recoverable from unrecoverable fees. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 313-14 (Tex. 2006). It was Thomsons burden to show that the attorneys fees and costs incurred in connection with unrelated suits to which Thomson was not a party, as well as other suits in other courts to which Thomson was also a party, were somehow inextricably intertwined to the extent that segregation was not necessary. It did not even attempt to do so. [6 RR 110]. As a result of Thomsons failure to timely supplement the documentation relied upon by Osborn in stating his opinion testimony regarding attorneys fees and costs, and its failure to segregate recoverable from unrecoverable fees, Osborns opinion testimony should have been excluded. Question 5 should not have been submitted, and the jurys answer to Question 5 is not supported by any admissible evidence. D. Thomson cannot recover taxes paid to F-Star. 1. Standards of Review.

Abuse of discretion is the appropriate standard for appellate review of both jury charge error, Tex. Dept of Human Servs. v. E. B., 802 S.W. 2d 647, 649 (Tex. 1990), and the decision to admit or exclude an exhibit. Gilgon v. Hart, 893 S.W.2d 562, 569 (Tex. App.--Corpus Christi 1994, writ denied). To determine whether a trial court abused its discretion, this Court must decide whether the trial 16
court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). 2. The judgment awarding allegedly overpaid amounts of real property taxes to Thomson should be reversed.
Question 2, and its accompanying instruction regarding Thomsons payment of more taxes than F-Star paid, should not have been submitted. F-Star properly objected to the submission of Question 2 on the grounds that misstated the terms of the lease, but the trial court denied the objection. [7 RR 20]. By submitting it as phrased, the trial court created its own measure of taxes supposedly owed by Thomson - - the same amount F-Star paid in taxes. Paragraph 11 of the lease, however, says Thomson must pay all taxes lawfully levied or assessed against the Facility, without regard to whether or not F-Star ever actually paid any taxes at all, or whatever amounts of taxes it may have paid. The trial court improperly rewrote the lease on terms to which F-Star never agreed, requiring a reversal and rendition of the Final Judgment awarding any recovery for taxes by Thomson. Furthermore, the Final Judgment awards more recovery for Thomson for taxes than the only properly-admissible evidence in the record supports. Appendix Exhibit 7 shows the comparison between (i) the amounts of taxes actually assessed on the property, as stated on the City of El Paso tax bills, which Paragraph 11 of the lease obligates Thomson to pay, and (ii) the amounts actually paid by Thomson 17
The jurys answer to Question 2, finding $979,020 in total overpayments of taxes by Thomson is not supported by competent evidence, and is excessive by a minimum of $479,301.23. The trial court erred in admitting Plaintiffs Exhibit 2, supposedly summarizing the amounts of tax bills from 1998 through 2004, over F-Stars objections that it was unauthenticated hearsay. [4 RR 58-60]. It does not qualify as an official record under Tex. R. Evid. 803(8), and is not a record of regularly conducted activity under Tex. R. Evid. 803(6). Plaintiffs Exhibit 2 was not offered at trial through the witness who prepared it. [4 RR 58]. It shows on its face that it is a Tax Estimate, not a tax bill or statement, and that EPCAD admittedly does not administer any taxes. Furthermore, it directly states that The City of El Paso Tax Office should be notified to determine the lax [sic] levy due. Plaintiffs Exhibit 2 does not accurately reflect the tax levy information actually contained in the official City of El Paso Tax Assessor-Collector property tax bills or tax statements for the property in question. [Px 7, 14-20], making it clearly untrustworthy and inadmissible. The trial courts decision to admit Plaintiffs Exhibit 2 was arbitrary and unreasonable, in violation of long-standing rules of evidence and with disregard for the clearly hearsay, untrustworthy, unauthenticated aspects of the exhibit. 18

PRAYER For all these reasons, Petitioners ask this Court to reverse the judgments of the court of appeals and the trial court in their entirety and render judgment that Thomson take nothing; or alternatively, to render judgment that Thomson take nothing for common area expenses or attorneys fees and costs and order a remittitur of overpaid taxes in the amount of not less than $459,301.23, as reflected in Appendix Exhibit 7. In the alternative, Petitioners ask this Court to reverse the judgments of the court of appeals and the trial court and remand the case to the trial court for a new trial. Petitioners further ask that they be awarded their costs of appeal and such other relief, general and special, legal and equitable, to which they may be entitled. Dated: May 17, 2010.
RANDY LEE Attorney at Law State Bar No. North A, Building 2-104 Midland, Texas 79705 Telephone: (432) 638-0895 Fax: (432) 224-1044
____________________________________ RANDY LEE Attorney for Petitioners
CERTIFICATE OF SERVICE I certify a true copy of this petition for review and its appendix was served upon the following parties and attorneys in accordance with the Texas Rules of Appellate Procedure on May 17, 2010:
Mark N. Osborn Kemp Smith LLP 221 N. Kansas Wells Fargo Plaza, 17th Floor El Paso, Texas 79901

By mail

____________________________ Randy Lee