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IN THE DISTRICT COURT IN AND FOR TULSA COUNTY
STATE OF OKLAHOMA
PLA-MOR PROPERTIES, LLC, an
Oklahoma Limited Liability Company,
Plaintiff,
v.
DR. BRANDON BAILEY, DO, PLLC, an
Oklahoma Professional Limited Liability
Company doing business as EVOLVED
HEALTH, and BRANDON BAILEY, an
Individual,
Case No: CJ-2019-02569
Judge: William B. LaFortune
Defendants.
ve
DR. BRANDON BAILEY, DO, PLLC, an eee cguae
Oklahoma Professional Limited Liability “ E93
Company doing business as EVOLVED NOV 23 7999
HEALTH, and BRANDON BAILEY, an
Individual, iV, Court Clerk
FULSA COUNTY
Third-Party Plaintiffs,
v.
CORD ZOUZAS CHARVAT;
KEVIN MATTHEW CHRISTIAN;
PLA-MOR PROPERTIES, LLC;
CHARVAT AND ASSOCIATES, LLC;
AAA CLUB ALLIANCE, INC.
Third-Party Defendants,
ee ee eee ee
DEFENDANT, DR. BRANDON BAILEY, DO, PLLC’S, D/B/A
EVOLVED HEALTH, RESPONSE TO PLAINTIFF
PLA-MOR PROPERTIES, LLC’S MOTION TO COMPEL
COMES NOW Defendant/Third-Party Plaintiff, Dr. Brandon Bailey, DO, PLLC, d/b/a
Evolved Health (“Defendant/Third-Party Plaintiff’), by and through its attorneys, Nick Larby and
Rebecca Jo David, of the iaw office of Larby & Associates, and for Defendant’s Response toPlaintiff's Motion to Compel, states as follows:
SUMMARY OF FACTS
This case involves an alleged breach of contract after Defendants/Third-Party Plaintiffs left
the leased premises when they discovered that Third-Party Defendant, Cord Zouzas Charvat, the
sole member and manager of Plaintiff, Pla-Mor Properties, LLC, and the sole member and owner
of Third-Party Defendant, Charvat and Associates, Inc., had knowledge and allowed his employee
of Charvat and Associates, Inc., to have access to the entire building he owned and managed,
including Defendant/Third-Party Plaintiff's leased out portion, which provided said employee the
location and opportunity to have sex over a period of several weeks with random women he met
on a popular hookup app, “Tinder”. Discovery has been issued by Plaintiff to Defendants/Third-
Party Plaintiffs and they have responded accordingly and in compliance with the Oklahoma
Discovery Code.
1, On March 17, 2020, Plaintiff served discovery requests to Defendant Brandon Bailey,
DO, PLLC. (See Plaintiff's Discovery Requests attached as Exhibit “1”).
2. Due to the novel coronavirus, the courts shut down from March 16, 2020 through May
15, 2020 and all rules, procedures, and deadlines were suspended.
3. On April 29, 2020, the Supreme Court of Oklahoma issued SCAD No. 2020-36, Third
Emergency Joint Order Regarding the COVID-19 State of Disaster, which declared
that beginning on May 16, 2020, all cases where the time for completing the action did
not commence until a date between March 16, 2020, and May 15, 2020, the full amount
of time to complete the action would be available, and May 16, 2020, would be counted
as the first day in determining the time to act. (See SCAD No. 2020-36 attached as
Exhibit “2”).In accordance with SCAD No 2020-36, the deadline for Defendant/Third-Party
Plaintiff's responses to Plaintiff's discovery requests were rescheduled for June 15,
2020.
Defendant’s Responses were postmarked for June 12, 2020, but were not delivered via
USPS until July 10, 2020, due to insufficient postage. (See Defendant’s Discovery
Responses marked as Exhibit “3”).
Plaintiff's counsel mailed a deficiency letter to counsel for Defendant/Third-Party
Plaintiff on July 14, 2020 outlining several allegedly “deficient responses”. (See
Plaintiff's Deficiency Letter marked as Exhibit “4”).
Counsel for Defendant/Third-Party Plaintiff responded to Plaintiff's deficiency letter
with additional supplementation and explanation of the alleged “deficient responses”
on August 6, 2020. (See Defendant/Third-Party Plaintiff's Correspondence dated
August 6, 2020 marked as Exhibit “5”).
On September 4, 2020, Plaintiff's counsel sent a second letter outlining additional
alleged deficiencies and requesting additional supplementation. (See Plaintiff's
counsel’s letter dated September 4, 2020, marked as Exhibit “6”).
Upon receipt of the second deficiency letter, Counsel for Defendant/Third-Party
Plaintiff did not respond to Plaintiff's counsel multiple attempts for supplementation
as the requested documents have not been received and the remaining requests had been
previously answered in accordance with the Oklahoma Discovery Code.
. Defendant/Third Party Plaintiff has responded to discovery in good faith and has
produced all documents and responses that is in its possession and allowed by law.ARGUMENT AND AUTHORITIES
1. DEFENDANT/THIRD PARTY PLAINTIFF HAS FULLY COMPLIED
WITH 12 O.S. § 3226, 3233, AND 3234
Under Oklahoma Statute 12 O.S. § 3233(A) a party is expected to “answer each
interrogatory separately and fully in writing under oath, unless it is objected to, in which event the
objecting party shall state the reasons for objection and shall answer to the extent the interrogatory
is not objectionable.”
Under Oklahoma Statute 12 O.S. § 3234(B)(2)(b) a party is “shall either state that
inspection and related activities will be permitted as requested or state with specificity the grounds
for objecting to the request, including the reasons.” Furthermore, the “production shall be
completed no later than the time for inspection specified in the request, or another reasonable time
specified in the response.” 12 O.S. § 3234(B)(2)(b).
Defendant/Third Party Plaintiff has complied with all of its obligations under the
Oklahoma Discovery Code, which will be demonstrated herein.
A. Interrogatory No. 4
Interrogatory No. 4 requests information concerning Defendant/Third-Party Plaintiff's
expert pursuant to 12 O.S. § 3226(B)(4). (Exhibit “1), Under 12 O.S. § 3226(B)(4)(1), a party may
“require any other party to identify each person whom that other party expects to call as an expert
witness at trial and give the address at which that expert witness may be located.” Further, after
“disclosure of the names and addresses of the expert witnesses, the other party expects to call as
witnesses, the party, who has requested disclosure, may depose any such expert witnesses subject
to scope of this section.” 12 O.S. § 3226(B)(4)(aX{2). However, under 12 0.8. § 3226(B)(4)(c) “a
party may not, by interrogatories or deposition, discover facts known or opinions held by an expertwho has been retained or specially employed by another in anticipation of litigation or to prepare
for trial and who is not expected to be catled as a witness at trial.”
Defendant/Third Party Plaintiff have disclosed the name and address of the expert they
have hired as a consultant. (See Exhibit “5”). If the expert retained is expected to be called on at
trial, the other information requested by Plaintiff will be supplemented at the time of expert
disclosures set in the Court’s Scheduling Order. In addition to the fact that the expert disclosed is
only retained as a consulting expert at this time, there are two Third Party Defendants that have
yet to be served. Therefore, an expert witness has been retained for consultation, but the scope of
his potential testimony has yet to be decided upon this early in litigation, let alone whether or not
he will be called upon at the time of trial. The Defendant/Third Party Plaintiff is not attempting to
thwart discovery of its expert witness, rather it is complying with the Oklahoma Discovery Code
and plans to follow any orders entered by the Court regarding expert disclosures.
B. Interrogatory No. 5 and Request for Production No. 6
Intertogatory No. 5 and Request for Production No. 6 requests information pertaining to
claimed damages. (Exhibit “1”), Defendant/Third-Party Plaintiff has produced invoices and
receipts that are in its possession to support its claim of damages. (Exhibits “3” and “5”).
Defendant/Third-Party Plaintiff has also advised that additional receipts and invoices are in the
process of being located and will be subsequently produced. Defendant/Third-Party Plaintiff has
also advised that it will supplement any expert report and/or summary of opinions that will also
serve as evidence for Defendant/Third-Party Plaintiff's claim for damages upon completion of the
same.
In City of Edmond vy. Parr, the Oklahoma Supreme Court noted that "[t]he purpose of
modern discovery practice and procedure is to promote the discovery of the true facts andcircumstances of a controversy rather than to aid in their concealment." 1978 OK 70, 587 P.2d 56,
57. A litigant should have every opportunity to use the discovery procedures contained in the
Oklahoma Discovery Code to discover facts which are known only to the opposing litigant. State
ex, rel. Remington Arms Co, v. Powers, 19760K 103,552P.2d 1150, 1153. The proper use of
modem discovery procedures prevents the trial of a lawsuit from becoming a guessing game. Id.
at 1152.
This matter is in the early stages of litigation, with little discovery completed. Further, as
mentioned above, there are two Third Party Defendants who have yet to be served.
Defendant/Third-Party Plaintiff has asserted that it will supplement discovery with documents
supporting its damages as the documents become available. Further, as explained above,
Defendant/Third-Party Plaintiff has only hired a consulting expert, therefore there is no report or
opinion that is discoverable at this time. Any information regarding Defendant/Third-Party
Plaintiff's experts will be disclosed in accordance with this Court’s expert disclosure deadline.
Therefore, Defendant/Third-Party Plaintiff has met its obligations under the Oklahoma Discovery
Code.
C. Interrogatory No. 6 and Requests for Production Nos. 3, 5, 9, 11, and 13
Interrogatory No. 6 requests information pertaining to witnesses. (Exhibit “1”). Request
for Production No. 3 requests all communications and documents between Defendant/Third-Party
Plaintiff and anyone concerning the alleged intrusions. (Exhibit “1”). Request for Production No.
5 requests all documents or things referenced in Defendant/Third Party Plaintiff's answers to
Interrogatories or Requests for Admissions. Request for Production No. 9 requests all documents
and things related to Defendanv/Third-Party Plaintiff search and acquisition of an alternative
premise. (Exhibit “1”), Request for Production No. 11 requests all documents and things whichsupport or rebut claims, counterclaims, or defenses, (Exhibit “I”). Request for Production No. 13
requests any documents evidencing remedial measures taken by Defendant. (Exhibit “1”).
Defendant/Third-Party Plaintiff asserted an objection based on the attorney/client privilege
and/or work product doctrine based on Plaintiff's overbroad requests to preserve any privileged
documents as explained in correspondence from Mr. Larby to Plaintiff's counsel dated August 6,
2020. (Exhibit “5”). Further, as explicitly stated in the correspondence dated August 6, 2020, from
Mr. Larby to Plaintiff's counsel, no documents have been withheld. (Exhibit “5”). As such, there
is nothing to list on a privilege log, or produce, as requested by Plaintiff's counsel. Accordingly,
Defendant/Third-Party Plaintiff has complied with its obligations Oklahoma Discovery Code.
CONCLUSION
This Court should deny Plaintiff's Motion to Compel Discovery. Plaintiff bases its motion
to compel on several infirm grounds and inconsistent interpretations of the Oklahoma Discovery
Code. As demonstrated supra, Defendant/Third-Party Plaintiff has plainly provided appropriate,
sufficient responses.
WHEREFORE, Defendant/Third-Party Plaintiff respectfully requests the Court deny
Plaintiff's Motion to Compel Discovery.Respectfully submitted,
Mabecca Qe Paved
Nick Larby, OBA%21734
Rebecea Jo David, OBA #32762
LARBY & ASSOCIATES
525 South Main Street, Suite 500
Tulsa, Oklahoma 74103
Phone: (918) 796-5780
Facsimile: (918) 514-6178
Email: nick@étulsalegalfirm.com
rebecca@tulsalegalfirm.com
ATTORNEYS FOR DEFENDANTS AND
COUNTERCLAIM-PLAINTIFFSCERTIFICATE OF MAILING
I certify that on the 23rd_day of November 2020, a true and correct copy of this document
was:
x mailed with postage prepaid thereon
mailed by certified mail, Return Receipt No.
x transmitted via facsimile
transmitted via email
hand-delivered
to:
Kirk R. Schauer, OBA #30245
Jesse L. Fettkether, OBA # 21173
11 4 E.M.B Brady St.
Tulsa, OK 74103
(918) 938.7300
Fax: (800) 636-1020
kirk@918Legal.com
ATTORNEY FOR PLAINTIFF
Rebecca Jo DavidIN THE DISTRICT COURT IN AND FOR TULSA COUNTY
STATE OF OKLAHOMA
PLA-MOR PROPERTIES, LLC, an
Oklahoma Limited Liability Company,
Plaintiff, Case No.: CJ-2019-2569
v. Judge: William D. LaFortune
DR. BRANDON BAILEY, DO, PLLC, an
Oklahoma Professional Limited Liability
Company doing business as EVOLVED
HEALTH, and BRANDON BAILEY, an
Individual,
Defendants,
DR. BRANDON BAILEY, DO, PLLC, an
Oklahoma Professional! Limited Liability
Company doing business as EVOLVED
HEALTH, and BRANDON BAILEY, an
Individual,
Third-Party Plaintiffs,
v.
CORD ZOUZAS CHARVAT; KEVIN
MATTHEW CHRISTIAN; PLA-MOR
PROPERTIES, LLC; CHARVAT AND
ASSOCIATES, LLC; AAA CLUB
ALLIANCE, INC.
SS
Third-Party Defendants.
PLAINTIFF PLA-MOR PROPERTIES, LLC’S FIRST SET OF INTERROGATORIES.
REQUESTS FOR ADMISSION, AND REQUESTS FOR PRODUCTION TO
DEFENDANT DR. BRANDON BAILEY, DO, PLLC
The Plaintiff and Third-Party Defendant, Pla-Mor Properties, LLC (hereinafter “Pla-Mor”
or “the Plaintiff"), hereby submits the following discovery requests pursuant to 12 O.S. §§ 3233,
3234 and 3236. You are required to answer each Interrogatory separately and fully, and to servea copy of the answers to the same upon Pla-Mor’s counsel within thirty (30) days after service.
These discovery requests are deemed continuing to the full extent authorized by 12 O.S. § 3226(E).
INSTRUCTIONS
1, These Interrogatories, Requests for Admission and Requests for Production
(collectively “Discovery Requests”) are directed toward ail the information known or available to
Dr. Brandon Bailey, DO, PLLC and/or its agents (collectively hereinafter “Dr. Brandon Bailey,
DO, PLLC”), and any subsidiaries, affiliates, employees, agents, or attorneys, of Dr. Brandon
Bailey, DO, PLLC, including information contained in the records and documents in their custody
or control, or available to them upon reasonable inquiry. Where such Interrogatories cannot be
answered in full, they shall be answered as completely as possible, and incomplete answers shall
be accompanied by a specification of the reasons for incompleteness of the answer, and of
whatever knowledge, information and belief is possessed with respect to each unanswered or
incompletely answered Interrogatory.
2. In construing these Discovery Requests the singular shall include the plural and the
plural shall include the singular. Any pronoun means the masculine or feminine gender and the
singular or plural as in each case may be appropriate. The use of a verb in any tense shall be
construed as the use of the verb in all tenses as is necessary.
3. These Discovery Requests shall be deemed continuing so as to require further and
supplemental answers if you obtain information with respect to the subject matter of any of these
Discovery Requests, which renders your answers thereto incomplete, inaccurate or in any way
misleading.
4, Dr. Brandon Bailey, DO, PLLC should not give lack of information or knowledge
as a reason for failure to admit or deny unless they state that they have made reasonable inquiryand that the information known or readily obtainable by them is insufficient to enable them to
admit or deny.
5. As to every Interrogatory that you fail to answer in whole or in part on the grounds
that the information sought involves a document or oral communication that you contend to be
privileged or otherwise protected from disclosure, state in detail:
(a) the portion of the interrogatory to which the response is claimed to be
privileged;
| (b) the identification of the document, as defined below;
(c) the general subject matter of the document or communication;
(d) the author and all recipients of any document, and the persons involved in any
oral communication;
(e) the identity of any other persons having knowledge of the document or
communication involved;
(f) the nature of the privilege claimed; and
(g) every fact on which you base the claim of privilege or that the information need
not be disclosed.
6. Except as otherwise provided, if you currently lack information to answer any
Interrogatory completely, state:
(a) the responsive information currently available;
(b) the responsive information currently unavailable;
(©) efforts which you intend to make to secure the information currently
unavailable; and
(d) when you anticipate receiving the information currently unavailable.7. Your failure to object to these Discovery Requests (including these instructions) in
writing within thirty (30) days from service of the same shall be deemed a waiver of your right to
so object. Any objection to these Discovery Requests must be included in your responses.
DEFINITIONS
1 When used in these Discovery Requests, the pronouns “you,” “your” and “yours”
and the terms “Defendant” or “Third Party Plaintiff’ or “Bailey Company” are intended to and
shall embrace and include Dr. Brandon Bailey, DO, PLLC, subsidiaries, affiliates, and any other
person acting or purporting to act on behalf of Dr. Brandon Bailey, DO, PLLC, and all of his
agents, servants, employees, representatives, private investigators and others who are in possession
of or may have obtained information for or on behalf of the party to whom these Interrogatories
are directed.
2. The words “Person” and “Persons” include, without limitation, individuals,
associations, partnerships, corporations and other companies.
3. The term “document” is used herein in its customary broad sense and means any
kind of printed, recorded, written, graphic or photographic matter (including tape recordings),
however printed, produced, reproduced, coded or stored, of any kind or description, whether sent
or received or not, including originals, drafts, copies, non-identical copies or reproductions,
summaries, reports, data compilations and tabulations, whether stored by mechanical,
photographic or electronic means (including electronic data storage media of all types). The term
“documents” shall also include, but not be limited to, the following: any writing, drawing, graph,
chart, plat, map, photograph, motion picture film, phonograph record, tape and video recording, or
any other records or data compilations from which information can be obtained. The term
“document” shall also include, without limitation, each note, memorandum, letter, work paper,
minutes, book, diary, calendar, appointment books, microfilm, opinion, appraisal, brochure,
4pamphlet, circular, telegram, release, article, analysis, transcript, agreement, accounting records,
logs, maps, statistical records, work sheets or papers, and any other written, recorded, transcribed,
punched, taped, filmed or graphic matter, however produced or reproduced and any other
document or writing of whatever description, including, but not limited to, any information
electronically stored.
4. “Describe” when used with respect to any statement or communication means to
identify the person making the statement or communication, the date it was made, the person or
persons to whom the communication was made and who witnessed the same, the contents of the
communication and the place where it was made.
5. “Describe” when used in connection with an act means to provide the identity of
the actor, the specific nature of the act, the date and place of the act and the identities of the
individuals present.
6. “And” and “or” shall be construed both disjunctively and conjunctively.
7. “Identify,” “Identified,” or “Identification”
(a) With respect to a document, means that you are requested to state the form
of the document, the date of its preparation, the author, recorder or sender, each addressee
or recipient, the subject matter, and the name and address of any person presently having
custody or control of the same or a true copy thereof. If any document was, but is no longer
within your possession, custody or control, state the disposition of the document and state
all information you have as to its present location and its content or substance, if known.
You may produce any document in lieu of identifying it.
(b) — With respect to a natural person, means that you are requested to state the
name (including any alias name), address, and telephone number of such person and thename, address, and telephone number of the last known person with or by whom such
natural person is or was employed.
(c) With respect to a person other than a natural person, means that you are
requested to state the total and complete name thereof and any trade name (or other
acronym) under which such person conducts business. If such person is a corporation,
partnership, association or other entity, state the present or last known mailing address of
that person and the address of its principal place of business. If such person is a
corporation, state the state or commonwealth and nation of incorporation of that person.
(d) With respect to an oral communication, means that you are requested to:
state whether such communication was in person, by telephone, or otherwise; list the date,
place, and persons present or otherwise involved in such communication; summarize the
context of the communication; and identify each document within your possession,
custody, control or knowledge which reports, summarizes, or otherwise memorializes or
refers to such oral communication, or the subject matter of anything discussed or
considered in such oral communication.
(e) With respect to an action, omission, instance, incident or event, means that
you are requested to: list as specifically as possible the date, place, time and persons
present or involved; state the transactions or occurrences which were part of, transpired in
or related to the action, omission, instance, incident or event being identified; identify each
document within your possession, custody, control or knowledge which reports,
summarizes, or otherwise memorializes or refers to such action, omission, instance,
incident or event; and identify the capacity or capacities in which the persons present or
involved were acting with respect to such action, omission, instance, incident or event.With respect to an allegation, claim, demand or cause of action, means you
are requested to: identify all persons who asserted or made such allegation, claim, demand
or cause of action; identify all persons against or on whom such allegation, claim, demand
or cause of action was asserted or made; state the transactions or occurrences which were
part of, transpired in or related to such allegation, claim, demand, or cause of action;
identify each document within your possession, custody, control or knowledge which
reports, summarizes or otherwise memorializes or refers to such allegation, claim, demand
or cause of action; state the forum, if any, in which such allegation, claim, demand or cause
of action was asserted or made; state the docket or case numbers assigned to any proceeding
in which such allegation, claim, demand or cause of action was asserted or made; state
whether such allegation, claim, demand or cause of action was criminal or civil in nature;
and state the procedural status or disposition of such allegation, claim, demand or cause of
action.
(g) With respect to a location, place, site or destination, means that you are
tTequested to: state the mailing address, street address, legal description and/or coordinates
of such location, place, site or destination; state the city, county, state (or commonwealth),
and country (other than the United States) in which such location, place, site or destination
is located; and identify all persons who own, lease, sublease, rent or occupy such location,
place, site or destination.
8. Any term not expressly defined herein is intended to have its customary, fair, and
plain meaning within the context of the applicable Discovery Requests.
INTERROGATORIES
INTERROGATORY NO. 1: Identify the person or persons who answered, prepared, or
assisted in answering or preparing the responses to these interrogatories by stating their name, title
7or position, and contact information (this is not a request for persons who only typed or formatted
these responses).
INTERROGATORY NO. 2: Fully identify Dr. Brandon Bailey, DO, PLLC by stating
the full legal name, state and date of incorporation, primary address, members, and stating any
parent company, affiliates, or “DBAs/trade names” related to said party
INTERROGATORY NO. 3: Provide details for all insurance policies which may
provide coverage for the claims brought by Pla-Mor against Dr. Brandon Bailey, DO, PLLC by
stating the company providing coverage, policy number, nature of coverage provided, and limits
under said policy.
INTERROGATORY NO. 4: Identify each person Defendant intends to call as an expert
witness at trial, and provide the contact information, the subject matter on which said expert is
expected to testify, and the substance of the facts and opinions of said testimony, pursuant to 12
O.S. § 3226(B)(4).
INTERROGATORY NO. 5: Describe and itemize the damages Defendant claims
including any setoff, counterclaim, or otherwise asserts against Plaintiff in this matter.
INTERROGATORY NO. 6: Provide a detailed witnesses list of persons who may have
information pertinent to this litigation, include the name, phone number, and nature of facts that
the witness may be able to testify to.
INTERROGATORY NO, 7: Provide a detailed list of employees who worked for
Defendant during the term of the lease, listing names, contact information and dates of
employment.
INTERROGATORY NO. 8:_ Describe in detail the facts and timeline of events which
give rise to your allegations and claims against Pla-Mor Properties, PLLC, including, but not
limited to when the alleged events occurred and when you learned of them.INTERROGATORY NO. 9:_ Describe in detail the alleged intrusion of Kevin Christian
including the area(s) improperly accessed within your leased premises, the measures utilized to
secure the premises, and the method Kevin Christian used to access the same.
INTERROGATORY NO. 10: Describe the remedial measures taken by Defendant in an
attempt to abate the issues raised by Defendant (to wit: the alleged intrusion of Kevin Christian).
INTERROGATORY NO. ii: Describe all instances or correspondence in which
Defendant gave notice of its issues to Plaintiff, including dates and method of notice (e.g. written,
electronic, over the phone, in person).
INTERROGATORY NO. 12: When did you begin shopping for a location to move to
from the premises leased from the Plaintiff?
INTERROGATORY NO. 13: What led to the decision to file a police report months
after learning of the alleged intrusion?
INTERROGATORY NO. 14: List the name of the security or alarm company, together
with any account or identifying numbers, you utilized during your occupancy of the leased
premises.
INTERROGATORY NO. 15: Describe all evidence you have that Kevin Christian
improperly entered your leased premises.
INTERROGATORY NO. 16: Describe all evidence you have that Pla-Mor Properties,
or any of its members, owners, or officers, had notice of the alleged behavior of Kevin Christian.
INTERROGATORY NO. 17: Describe with specificity the improper conduct of Pla-
Mor Properties that led to your claims against it.
INTERROGATORY NO. 18: Describe all agents, brokers, or other contacts which
served, contracted, or otherwise assisted you or your new iandlord in leasing the space at 811 W.
New Orleans St. in Broken Arrow, OK.INTERROGATORY NO. 19: Describe in detail the factual basis and justification for the
claims brought against the Plaintiff, including:
a. Breach of Contract;
b. Trespass;
c. Negligence;
d. Intentional Infliction of Emotional Distress;
e. Negligent Hiring; and
f. Punitive Damages.
REQUESTS FOR ADMISSIONS
REQUEST FOR ADMISSION NO. 1: Admit that the Lease attached hereto as Exhibit
“A” is a true and accurate copy of the lease properly executed by Brandon Bailey on behalf of
Brandon Bailey, DO, PLLC.
REQUEST FOR ADMISSION NO. 2: Admit that the Personal Guarantee attached to
the lease between the parties (as Exhibit A on the top of the document) and stamped and attached
hereto as Exhibit “B” (on the bottom of the document) is a true and accurate copy of the Personal
Guarantee executed by Brandon Bailey, individually.
REQUEST FOR ADMISSION NO. 3: Admit that Brandon Bailey, DO, PLLC,
breached its lease with Pla-Mor Properties, LLC.
REQUEST FOR ADMISSION NO. 4: Admit that Brandon Bailey, DO, PLLC, is
indebted to Pla-Mo Properties, LLC, in the amount pled in Plaintiff's petition.
REQUEST FOR ADMISSION NO. 5:, Admit the decision to move your business was
not a result of the alleged conduct of Kevin Christian.REQUEST FOR ADMISSION NO. 6: Admit that your business had video cameras on
its premises.
REQUEST FOR ADMISSION NO. 7: Admit that you have video evidence of the entry
of Kevin Christian or other employees of the Plaintiff onto your portion of the leased premises.
REQUEST FOR ADMISSION NO. 8; Admit that you have no evidence that the
behavior of Kevin Christian was for the benefit of or under the direction or Pla-Mor Properties,
LLC
REQUEST FOR ADMISSION NO. 9: Admit that the police report filed April 10, 2019,
by Shelly Hayes on behalf of Evolve Health and Wellness, is accurate.
REQUEST FOR ADMISSION NO. 10: Admit that Pla-Mor Properties, LLC, was not
notified of the alleged intrusion(s) in 2018.
REQUEST FOR ADMISSION NO. 11: Admit that Pla-Mor Properties, LLC, was not
notified of the alleged intrusion(s) prior to your decision to relocate.
REQUEST FOR ADMISSION NO. 12: Admit that a police report was not filed until
after you were advised that you were not going to be released from the lease.
REQUEST FOR ADMISSION NO. 13: Admit that nothing was stolen from the leased
premises in the alleged intrusion(s).
REQUEST FOR ADMISSION NO. 14: Admit that you did not notify patients of any
alleged intrusion(s),
REQUEST FOR ADMISSION NO. 15: Admit Pla-Mor Properties, LLC, did not
violate or breach the lease agreement.
REQUEST FOR ADMISSION NO. 16: Admit Pla-Mor Properties, LLC, did not
trespass.
iYREQUEST FOR ADMISSION NO. 17: Admit Pla-Mor Properties, LLC, did was not
negligent.
REQUEST FOR ADMISSION NO. 18: Admit Pla-Mor Properties, LLC, did not
intentionally inflict emotional distress.
REQUEST FOR ADMISSION NO. 19: Admit Pla-Mor Properties, LLC, was not
negligent in its hiring, training, supervision, or entrustment.
REQUEST FOR ADMISSION NO. 20: Admit that after vacating the leased premises in
question you moved to 81] W. New Orleans St., Broken Arrow, OK.
DEFENDANT’S FIRST. UESTS FOR PRODUCTION
REQUEST FOR PRODUCTION NO.1: Produce all communications, written
electronic, or recorded, between you and Pla-Mor Properties, LLC, (including employees,
members, owners, or agents of the respective companies) concerning the leased premises in
anyway, including but not limited to notificationts) of the alleged intrusion(s), requested remedies,
and discussions/notices concerning your decision to vacate the premises.
REQUEST FOR PRODUCTION NO. 2: Produce all agreements signed or which you
otherwise hold as legally binding between you and Pla-Mor Properties, LLC.
REQUEST FOR PRODUCTION NO. 3: Produce all communications and related
documents between yourself and anyone concerning the alleged intrusions.
REQUEST FOR PRODUCTION NO. 4: Produce all documents, logs, ledgers, or other
materials evidencing payments made by you or on your behalf to Pla-Mor Properties, LLC.
REQUEST FOR PRODUCTION NO. 5: Produce all documents or things referenced,
used to answer, or supporting your answer to Interrogatories or Requests for Admissions.REQUEST FOR PRODUCTION NO, 6:, Produce all documents, logs, ledgers, or other
materials evidencing damages alleged by you.
REQUEST FOR PRODUCTION NO. 7: Produce all evidence of the alleged intrusion
of Kevin Christian into the premises leased by you, including, but not limited to, evidence recorded
by security cameras.
REQUEST FOR PRODUCTION NO. 8: Produce all entrance, disarm, —_ and
entrance/exit logs from any security, alarm, or entrance system utilized at the leased premises by
you.
REQUEST FOR PRODUCTION NO. 9: Produce all documents and things related to
your search and acquisition of an alternative premises, including but not limited to any agent or
broker agreements, term sheets, and a copy f the lease for the premises to which you moved.
REQUEST FOR PRODUCTION NO. 10: Produce correspondence with a broker,
agent or landlord inquiring about, negotiating, finalizing, or otherwise referencing Defendant's
search for a new location.
REQUEST FOR PRODUCTION NO. 11: Produce a copy of all documents and things
which support or rebut your claims, counterclaims, or defenses.
REQUEST FOR PRODUCTION NO. 12: Produce copies of all documents and
exhibits which you intend to or may utilize at the time of trial in this lawsuit.
REQUEST FOR PRODUCTION NO. 13: Produce any documents evidencing
remedial measures taken by Defendant to remedy the alleged breach.
KM Sehauey/OBA #30245
vlJesse L. Fettkether, OBA #21173
11 ¥%E. Reconciliation Way
Tulsa, OK 74103-7800
(918) 938-7300
Fax: (800) 636-1020
Kirk @918Legal.comCERTIFICATE OF MAILING
I hereby certify that on this 17th day of March, 2020, I mailed a true and correct copy of
the foregoing instrument via first class mail with the proper postage fully prepaid thereon to:
Nick Larby, Esq.
Larby & Associates
1874 S. Boulder Ave.
Tulsa, OK 74119
Attorney for Defendant/Third-Party Plaimiff
Jesse |Z. Fettkether
15This is a legally binding Contract; if not understood seek advice from an attorney.
OFFICE BUILDING LEASE
THIS LEASE is entered into by and between Landlord and Tenant and upon approval by both Landlord and Tenant, as evidenced by their
signatures hereto, a valid and binding Lease shall exist, the terms and conditions of which are as follows:
1. DEFINITIONS AND BASIC PROVISIONS. The following definitions and basic provisions shall be construed as follows when used
elsewhere in this Lease:
a) Effective Date: The Effective Date shall be the latest date for approval by all parties as indicated below.
b) Landlord: _ Play-Mor Properties, LLC
c/o Cord Charvat
Address __721 W. Queens Street, Broken Arrow, OK 74012
Phone No. ___ 918-932-6343
c) Tenant: Brandon Bailey, DO PLLC
clo __Brandop Bailey
Address 3621 $. Elder Boulevard, Broken Arrow, OK _74011
Phone No. __ 620-330-0360
d) Third Party Guarantor: ___ Brandon Bailey __ Guarantor Agreement attached hereto as Exhibit
Address 3621 §. Elder Boulevard, Broken Arrow, OK 74011
Phone No. __620-330-0360.
e) Leased Premises: Approximately 4,923 square feet, Suite No. in the building
located at__721 W. Queens Street, Broken Arrow, OK 74012 in Tulsa______ County, County, Oklahoma,
such premises being shown and outlined on the plan attached hereto as Exhibit (N/A)
f) Project:
Use: Medical Clinic Tenant, as evidenced by his
signature below, has determined and represents that the stated use is consistent with ali local, State and Federal regulations
applicable to said use.
h) Legal Use. Tenant shall use the Leased Premises only for the use stated and for no other purposes. Tenant shall not use, nor
permit the use of, anything in the Leased Premises (i) which would violate any of the agreements of the Lease, (ii) for any
unlawful purpose or in any unlawful manner, or (iii) that would substantially increase cost of the Landlord’s insurance.
i) Lease Term: A period of, 60 Months and 14 Days commencing on ___December 18, 207
(‘Commencement Date”) and ending on December 31. 2022 (“Expiration Date").
PD) Base Rental: A total of $ 341,460.34 (total base rentals) payable in monthly installments in advance as
follows: From To Monthly Rate
December 1: 17, December 31, 2017 $_-0-
January 1, 2018 January 17,2018 $_-0-
January 18, 2018 January 31,2018 $_2,593.84
Year_1 Fe 31,2018 December 31, 2018 $_5,743,50
Year_2 January 1, 2019 December 31,2019 ‘$_S,743.50
Year_3_ January 1, 2020 December 31, 2020 $_5,743,50
Year_4_ January 1, 2021 December 31, 2021 $_5,743,50
Year_S. January 1, 2022 December 31, 2022 $_5,743,50
‘Standard Office Building Lease (2701) 11/2013 EXHIBIT A [*
Bauer & Associates, Inc., 4821 $, Sheridan, Suite 201, Tulsa, OK 74145
Phone. (918) 665-1210 Fax; (918) 665-6462
Pla-Mor Discovery Request Exhibit A.1 jo M1S-t7 docxOFFICE BUILDING LEASE (Continued)
k) Prepaid Rental: $___2,593.84 representing payment of rental for the first month of the Lease Term.
1) Security Deposit: $__ 5,000.00 (not applicable taward last month’s rent).
m) Parking: (Check one) _X_ no charge to be used in common by all tenants and guests. spaces
allocated for the Leased Premises, additional parking at a cost of $ per space per month,
a) Tenant’s Public Liability Insurance Limits:
$ __1,000,000.00. combined single limit bodily injury and property damage as described in paragraph 5(h).
o} Operating Expenses: Operating Expenses included in the Base Rental shalt be either $ N/A per square foot OR the
proportional share of actual expenses for base year A
p) Services by Landlord: Landlord agrees to furnish Tenant, while Tenant occupies the Leased Premises, the following services
during the normal business hours established for the building, 7:00 a.m. to 7:00 p.m., Monday through Friday, and 8:00 a.m. to
12:00 noon on Saturday, excluding Sundays and holidays: water, electric service, heating and air conditioning, and janitorial
services, including trash removal as may, in the judgment of the Landlord, be reasonably required. Should any equipment or
machinery furnished by Landlord cease to function properly, Landlord shail use reasonable diligence to provide prompt repair,
but Tenant shall have no claim for rental abatement or damages on account of any interruption in service, or for the interruption
of utility or services beyond Landlord’s control.
2. GRANTING CLAUSE. Landlord hereby covenants and warrants that it has rightful possession to, and hereby leases, lets, and
demises unto Tenant, together with all improvements, appurtenances, easements. and privileges thereunto belonging, the
Leased Premises for the Permitted Use, together with on-site parking. if any.
3, PAYMENT OF RENT. Tenant agrees to pay to Landlord the monthly base rental, with such monthly installments to be paid
in advance, on or before the first day of each calendar month during the term, without demand. Tenant shall pay the first monthly
installment as “prepaid-rental” concurrently with the execution of this Lease. The rent for a portion of the calendar month during
which rent might begin to accrue or terminate shall be prorated. With the exception set forth in Paragraphs 5 (I) and 5 (m), Tenant's
covenant to pay rent shail be independent of every other covenant set forth in this Lease, and Tenant shall have no right of
deduction or setoff whatsoever. All rents herein provided for shall be paid to Landlord at the Landlord's address or at such other place
as shall be designated by Landlord, in writing, furnished to Tenant at least ten (10) days prior to the next ensuing rent payment due
date.
Operating Expense Increase/Additional Rent. Any operating expense proportionately allocated to the Leased Premises, in excess of
those set forth in Paragraph I (0) above, shall be charged and billed to the Tenant as Additional Rent, payable as follows:
N/A
Building operating expense to include, but not be limited to the following: taxes and insurance, utilities (water, gas, electricity, heating and
air conditioning, building management fees, maintenance (including necessary non capital replacements), fixtures and equipment, exterior
lighting, roof, exterior maintenance, common area maintenance (including entry ways, stairways, hallways, parking lots and driveways,
restrooms, landscaping, and janitorial services), trash removal, window washing, sweeping, and snow and ice removal from parking area
and driveways.
4, LATE PAYMENT OF RENT. Any rents received on the 5 day after the due date, or thereafter, shall be assessed in the amount of
$100.00 or the maximum late fee amount allowable by law whichever is less.
5. GENERAL PROVISIONS.
a) Flood Notification. If required by a City or County governmental agency, Landlord shall deliver to Tenant prior to Tenant
signing this lease notice in writing if Property is located in an area designated as a flood hazard area as defined by such City
and/or County governmental agency.
b) Repairs, Landlord shall keep and maintain the roof, exterior walls, structure, floor slabs, public stairways and corridors, lavatories,
equipment, lights and fixtures and common facilities of the building in good condition and repair. Tenant shall keep the Leased
Premises neat and clean and in such order, and condition as received on Commencement Date (or Occupancy Date, whichever is
earliest), or may be put in during the term hereof, reasonabie use and wear excepted. Tenant shall neither damage or abuse. nor
permit the damage or abuse of, the Leased Premises. Tenant shall not overload the floor and shall abide by Landlord’s instructions
with respect to care and avoidance of abuse. Tenant shall not overload the electrical system and shall abide by Landlord's
instructions with respect to care and avoidance of abuse.
¢} Possession. Unless otherwise agreed to in writing, possession shall be delivered on the Commencement Date of this Lease. If
Landlord is unable to deliver possession of the Leased Premises at the commencement hereof, Landlord shail not be liable for any
Standard Office Building Lease (4701) 1/2013 Page 2 of 6
Baver & Associates, Inc. 4921 S. Sheridan, Suite 201, Tulsa, OK 74145
Fac: (918) 665-6402
Pla-Mor Discovery Request Exhibt AS” bbb Play-Mor to Bailey, 11-15-17. does,OFFICE BUILDING LEASE (Continued)
damage caused thereby, nor shall this Lease be void or voidable, but Tenant shall not be liable for any rent until possession is
delivered. Tenant may terminate this lease if possession is not delivered within 30 days of the commencement of
the term.
4) Assignment, Subletting, and Encumbering. This Lease shall not be assigned. sublet, or transferred by Tenant without
Landlord's prior written consent. Tenant shall not sublet, or offer or advertise for subletting, the Leased Premises, or any
portion thereof, without the prior written consent of Landlord. Any assignment or subletting shall not relieve Tenant of its
obligations hereunder or release Tenant from the further performance of all covenants herein contained.
) Estoppel Certificate. Tenant shall, at any time so requested, execute and deliver to Landlord such Estoppe! certificates as
Landlord shall reasonably require, stating length of Tenant's Lease, amount of rent, deposits, and other terms.
f) Subordination. This Lease shail be subject and subordinate, at all times, to the lien of existing mortgages and of mortgages
which hereafter may be made on the Leased Premises. Tenant will execute and deliver such further instruments
subordinating this Lease to the fien of any such mortgages as may be desired by Landlord.
g) Tenant's Public Liability and Loss or Damage, Tenant shall procure, keep in force, and pay for comprehensive public liability
insurance, in amounts reasonably required by Landlord, with reputable, responsible licensed companies, indemnifying Landlard
and Tenant against all claims and demands for injury to, or death of, persons or damage to property, which may be claimed to
have occurred on the Leased Premises. Landlord shall be named as additional insured and Certificates of the same shall be
provided to the Landlord. Landlord shall insure the building and its structure and Tenant shall insure all of Tenant's contents.
h) Toxic or Hazardous Materials. Tenant shall not store. use, or dispose of any toxic or hazardous materials in, on, or about
the Leased Premises, without the prior written consent of Landlord. Tenant, at its sole cost, will comply with all laws
relating to Tenant's storage, use, and disposal of hazardous or toxic materials.
i) Indemnity, Liability and Loss or Damage. Tenant agrees to defend, indemnify, and hold Landlord harmless from any loss, cost,
or expense, whatsoever, resulting from (i) personal injury, loss of life, or loss of property relating to the use and occupancy by
Tenant, or (ii) from damage to, or destruction of, the Project structure, or any part thereof, or of any abutting real property caused
by, or attributable to, the negligent act or acts, or omission or omissions to act, of Tenant, or caused by, or attributable to, the
Tenant's failure to perform its obligations under this Lease. Likewise, Landlord agrees to defend, indemnify, and hold Tenant
harmless from any loss, whatsoever, resulting from personal injury, loss of life or property relating to the use of Landlord and use
and occupancy by other tenants, or caused by, or attributable to, the negligent act or acts, omission or omissions to act, of
Landlord, or caused by, or attributable to, Landlord's failure to perform its obligations under this Lease.
f) Holding Over/Option to Renew. In the event Tenant remains in possession of the Leased Premises after the expiration or
termination of the Lease, Tenant shall occupy the Leased Premises as a Tenant from month-to-month at 150% of the rental
due for the last full calendar month during the term of the Lease and subject to all other provisions and obligations of the
Lease applicable to a month-to-month tenancy. Tenant shall also have the option to renew this lease agreement for one (1) three
(3) year lease period. Rent for the option period shall be increased by four percent (4%) and Tenant shall give Landlord ninety
(90) days written notice of their intent to exercise this option to renew.
k) Signs. No sign, notice, or other advertisement shall be inscribed, painted, affixed, or displayed on any of the windows or doors
‘or on any other part of the outside or the inside of the Leased Premises without prior written consent of Landlord or its agents.
Consent shall not be unreasonably withheld. All signage must meet City of Broken Arrow regulations. See Exhibit “B”.
1) Destruction of Leased Premises. In the event of a partial destruction of the building in which the Leased Premises are
contained, during the term, Landlord shall make any repairs that can be made under existing governmental regulations
within one hundred twenty (120) days of such destruction, but such partial destruction shail not terminate this Lease. except
that Tenant shall be entitled to a proportionate reduction of rent while repairs are being made, based upon the extent to
which the making of such repairs shall interfere with the business of Tenant on the Leased Premises. If repairs cannot be
made within onc hundred twenty (120) days, this Lease may be terminated, at the option of either party, by delivering
written notice.
Right of Entry. Landlord reserves the right to retain passkeys to the Leased Premises at all times. Landlord reserves the right,
for itself, and its employees, or contractors, and Tenant covenants to permit Landlord, or Landlord's agents, employees, or
contractors to enter any and all portions of the Leased Premises at any time; provided, that Landlord shall give Tenant
reasonable notice prior to any entry for the purpose of showing the space to prospective tenants. Tenant shall permit
‘Standard Office Building Lease (2701) 1/2013 Page 3of6
Baver & Associates, Inc. 4821 9. Sheridan, Sulte 201, Tulsa, OK 74145,
Pla-Mor Discovery Request EXRIBRAS Poses ‘Ub - Play-Mor 1o Bailey, 11-15-17 docxOFFICE BUILDING LEASE (Continued)
Landlord at any time within sixty (60) days prior to expiration of this lease to place upon the Leased Premises the usual “For
Lease" or “For Sale” signs, and permit persons desiring to lease or purchase the same to inspect the Leased Premises
thereafter. Any such right of entry by Landlord shali nat be made in violation of HIPPA or any other state or federal regulation
governing the right to patient privacy.
During the progress of any repairs or other work, Landlord may keep and store on the Leased Premises all necessary
materials, tools, and equipment, and Landlord shail, in no event, be liable for disturbance, inconvenience, annoyance, loss
of business, or other damage to Tenant, or any assignee, or sublessee under the Lease, by making such repairs or performing
any such work on or in the Leased Premises, or due to bringing materials, supplies, and equipment into or through the
Leased Premises during the course of such work
n) Condemnation. If the Leased Premises is totally candemned by any lawful authority under the power of eminent domain, or
shall, during the continuance of the Lease, be totally destroyed by the action of public authorities, then this Lease and the
term leased shall terminate, and Tenant shail be Jiable for rent only up to the date of such termination.
©) Quiet Enjoyment. Landlord grants to Tenant, in exchange for continued payment of rent and performance of each and
‘every covenent hereof. the right to peacefully and quietly hold, occupy, and enjoy the Leased Premises throughout the term.
Further, Tenant shall not commit any waste upon the Leased Premises, or any nuisance or act which may disturb the quiet
enjoyment of any tenant in the building.
6. LANDLORD'S LIEN. In consideration of the mutual benefits arising under this Lease, Tenant hereby grants to Landlord a lien
and security interest in and on all property Tenant now, or hereafter, may place in or upon the Leased
Preview
IN THE DISTRICT COURT IN AND FOR TULSA COUNTY STATE OF OKLAHOMA PLA-MOR PROPERTIES, LLC, an Oklahoma Limited Liability Company, Plaintiff, v. DR. BRANDON BAILEY, DO, PLLC, an Oklahoma Professional Limited Liability Company doing business as EVOLVED HEALTH, and BRANDON BAILEY, an Individual, Case No: CJ-2019-02569 Judge: William B. LaFortune Defendants. ve DR. BRANDON BAILEY, DO, PLLC, an eee cguae Oklahoma Professional Limited Liability “ E93 Company doing business as EVOLVED NOV 23 7999 HEALTH, and BRANDON BAILEY, an Individual, iV, Court Clerk FULSA COUNTY Third-Party Plaintiffs, v. CORD ZOUZAS CHARVAT; KEVIN MATTHEW CHRISTIAN; PLA-MOR PROPERTIES, LLC; CHARVAT AND ASSOCIATES, LLC; AAA CLUB ALLIANCE, INC. Third-Party Defendants, ee ee eee ee DEFENDANT, DR. BRANDON BAILEY, DO, PLLC’S, D/B/A EVOLVED HEALTH, RESPONSE TO PLAINTIFF PLA-MOR PROPERTIES, LLC’S MOTION TO COMPEL COMES NOW Defendant/Third-Party Plaintiff, Dr. Brandon Bailey, DO, PLLC, d/b/a Evolved Health (“Defendant/Third-Party Plaintiff’), by and through its attorneys, Nick Larby and Rebecca Jo David, of the iaw office of Larby & Associates, and for Defendant’s Response toPlaintiff's Motion to Compel, states as follows: SUMMARY OF FACTS This case involves an alleged breach of contract after Defendants/Third-Party Plaintiffs left the leased premises when they discovered that Third-Party Defendant, Cord Zouzas Charvat, the sole member and manager of Plaintiff, Pla-Mor Properties, LLC, and the sole member and owner of Third-Party Defendant, Charvat and Associates, Inc., had knowledge and allowed his employee of Charvat and Associates, Inc., to have access to the entire building he owned and managed, including Defendant/Third-Party Plaintiff's leased out portion, which provided said employee the location and opportunity to have sex over a period of several weeks with random women he met on a popular hookup app, “Tinder”. Discovery has been issued by Plaintiff to Defendants/Third- Party Plaintiffs and they have responded accordingly and in compliance with the Oklahoma Discovery Code. 1, On March 17, 2020, Plaintiff served discovery requests to Defendant Brandon Bailey, DO, PLLC. (See Plaintiff's Discovery Requests attached as Exhibit “1”). 2. Due to the novel coronavirus, the courts shut down from March 16, 2020 through May 15, 2020 and all rules, procedures, and deadlines were suspended. 3. On April 29, 2020, the Supreme Court of Oklahoma issued SCAD No. 2020-36, Third Emergency Joint Order Regarding the COVID-19 State of Disaster, which declared that beginning on May 16, 2020, all cases where the time for completing the action did not commence until a date between March 16, 2020, and May 15, 2020, the full amount of time to complete the action would be available, and May 16, 2020, would be counted as the first day in determining the time to act. (See SCAD No. 2020-36 attached as Exhibit “2”).In accordance with SCAD No 2020-36, the deadline for Defendant/Third-Party Plaintiff's responses to Plaintiff's discovery requests were rescheduled for June 15, 2020. Defendant’s Responses were postmarked for June 12, 2020, but were not delivered via USPS until July 10, 2020, due to insufficient postage. (See Defendant’s Discovery Responses marked as Exhibit “3”). Plaintiff's counsel mailed a deficiency letter to counsel for Defendant/Third-Party Plaintiff on July 14, 2020 outlining several allegedly “deficient responses”. (See Plaintiff's Deficiency Letter marked as Exhibit “4”). Counsel for Defendant/Third-Party Plaintiff responded to Plaintiff's deficiency letter with additional supplementation and explanation of the alleged “deficient responses” on August 6, 2020. (See Defendant/Third-Party Plaintiff's Correspondence dated August 6, 2020 marked as Exhibit “5”). On September 4, 2020, Plaintiff's counsel sent a second letter outlining additional alleged deficiencies and requesting additional supplementation. (See Plaintiff's counsel’s letter dated September 4, 2020, marked as Exhibit “6”). Upon receipt of the second deficiency letter, Counsel for Defendant/Third-Party Plaintiff did not respond to Plaintiff's counsel multiple attempts for supplementation as the requested documents have not been received and the remaining requests had been previously answered in accordance with the Oklahoma Discovery Code. . Defendant/Third Party Plaintiff has responded to discovery in good faith and has produced all documents and responses that is in its possession and allowed by law.ARGUMENT AND AUTHORITIES 1. DEFENDANT/THIRD PARTY PLAINTIFF HAS FULLY COMPLIED WITH 12 O.S. § 3226, 3233, AND 3234 Under Oklahoma Statute 12 O.S. § 3233(A) a party is expected to “answer each interrogatory separately and fully in writing under oath, unless it is objected to, in which event the objecting party shall state the reasons for objection and shall answer to the extent the interrogatory is not objectionable.” Under Oklahoma Statute 12 O.S. § 3234(B)(2)(b) a party is “shall either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons.” Furthermore, the “production shall be completed no later than the time for inspection specified in the request, or another reasonable time specified in the response.” 12 O.S. § 3234(B)(2)(b). Defendant/Third Party Plaintiff has complied with all of its obligations under the Oklahoma Discovery Code, which will be demonstrated herein. A. Interrogatory No. 4 Interrogatory No. 4 requests information concerning Defendant/Third-Party Plaintiff's expert pursuant to 12 O.S. § 3226(B)(4). (Exhibit “1), Under 12 O.S. § 3226(B)(4)(1), a party may “require any other party to identify each person whom that other party expects to call as an expert witness at trial and give the address at which that expert witness may be located.” Further, after “disclosure of the names and addresses of the expert witnesses, the other party expects to call as witnesses, the party, who has requested disclosure, may depose any such expert witnesses subject to scope of this section.” 12 O.S. § 3226(B)(4)(aX{2). However, under 12 0.8. § 3226(B)(4)(c) “a party may not, by interrogatories or deposition, discover facts known or opinions held by an expertwho has been retained or specially employed by another in anticipation of litigation or to prepare for trial and who is not expected to be catled as a witness at trial.” Defendant/Third Party Plaintiff have disclosed the name and address of the expert they have hired as a consultant. (See Exhibit “5”). If the expert retained is expected to be called on at trial, the other information requested by Plaintiff will be supplemented at the time of expert disclosures set in the Court’s Scheduling Order. In addition to the fact that the expert disclosed is only retained as a consulting expert at this time, there are two Third Party Defendants that have yet to be served. Therefore, an expert witness has been retained for consultation, but the scope of his potential testimony has yet to be decided upon this early in litigation, let alone whether or not he will be called upon at the time of trial. The Defendant/Third Party Plaintiff is not attempting to thwart discovery of its expert witness, rather it is complying with the Oklahoma Discovery Code and plans to follow any orders entered by the Court regarding expert disclosures. B. Interrogatory No. 5 and Request for Production No. 6 Intertogatory No. 5 and Request for Production No. 6 requests information pertaining to claimed damages. (Exhibit “1”), Defendant/Third-Party Plaintiff has produced invoices and receipts that are in its possession to support its claim of damages. (Exhibits “3” and “5”). Defendant/Third-Party Plaintiff has also advised that additional receipts and invoices are in the process of being located and will be subsequently produced. Defendant/Third-Party Plaintiff has also advised that it will supplement any expert report and/or summary of opinions that will also serve as evidence for Defendant/Third-Party Plaintiff's claim for damages upon completion of the same. In City of Edmond vy. Parr, the Oklahoma Supreme Court noted that "[t]he purpose of modern discovery practice and procedure is to promote the discovery of the true facts andcircumstances of a controversy rather than to aid in their concealment." 1978 OK 70, 587 P.2d 56, 57. A litigant should have every opportunity to use the discovery procedures contained in the Oklahoma Discovery Code to discover facts which are known only to the opposing litigant. State ex, rel. Remington Arms Co, v. Powers, 19760K 103,552P.2d 1150, 1153. The proper use of modem discovery procedures prevents the trial of a lawsuit from becoming a guessing game. Id. at 1152. This matter is in the early stages of litigation, with little discovery completed. Further, as mentioned above, there are two Third Party Defendants who have yet to be served. Defendant/Third-Party Plaintiff has asserted that it will supplement discovery with documents supporting its damages as the documents become available. Further, as explained above, Defendant/Third-Party Plaintiff has only hired a consulting expert, therefore there is no report or opinion that is discoverable at this time. Any information regarding Defendant/Third-Party Plaintiff's experts will be disclosed in accordance with this Court’s expert disclosure deadline. Therefore, Defendant/Third-Party Plaintiff has met its obligations under the Oklahoma Discovery Code. C. Interrogatory No. 6 and Requests for Production Nos. 3, 5, 9, 11, and 13 Interrogatory No. 6 requests information pertaining to witnesses. (Exhibit “1”). Request for Production No. 3 requests all communications and documents between Defendant/Third-Party Plaintiff and anyone concerning the alleged intrusions. (Exhibit “1”). Request for Production No. 5 requests all documents or things referenced in Defendant/Third Party Plaintiff's answers to Interrogatories or Requests for Admissions. Request for Production No. 9 requests all documents and things related to Defendanv/Third-Party Plaintiff search and acquisition of an alternative premise. (Exhibit “1”), Request for Production No. 11 requests all documents and things whichsupport or rebut claims, counterclaims, or defenses, (Exhibit “I”). Request for Production No. 13 requests any documents evidencing remedial measures taken by Defendant. (Exhibit “1”). Defendant/Third-Party Plaintiff asserted an objection based on the attorney/client privilege and/or work product doctrine based on Plaintiff's overbroad requests to preserve any privileged documents as explained in correspondence from Mr. Larby to Plaintiff's counsel dated August 6, 2020. (Exhibit “5”). Further, as explicitly stated in the correspondence dated August 6, 2020, from Mr. Larby to Plaintiff's counsel, no documents have been withheld. (Exhibit “5”). As such, there is nothing to list on a privilege log, or produce, as requested by Plaintiff's counsel. Accordingly, Defendant/Third-Party Plaintiff has complied with its obligations Oklahoma Discovery Code. CONCLUSION This Court should deny Plaintiff's Motion to Compel Discovery. Plaintiff bases its motion to compel on several infirm grounds and inconsistent interpretations of the Oklahoma Discovery Code. As demonstrated supra, Defendant/Third-Party Plaintiff has plainly provided appropriate, sufficient responses. WHEREFORE, Defendant/Third-Party Plaintiff respectfully requests the Court deny Plaintiff's Motion to Compel Discovery.Respectfully submitted, Mabecca Qe Paved Nick Larby, OBA%21734 Rebecea Jo David, OBA #32762 LARBY & ASSOCIATES 525 South Main Street, Suite 500 Tulsa, Oklahoma 74103 Phone: (918) 796-5780 Facsimile: (918) 514-6178 Email: nick@étulsalegalfirm.com rebecca@tulsalegalfirm.com ATTORNEYS FOR DEFENDANTS AND COUNTERCLAIM-PLAINTIFFSCERTIFICATE OF MAILING I certify that on the 23rd_day of November 2020, a true and correct copy of this document was: x mailed with postage prepaid thereon mailed by certified mail, Return Receipt No. x transmitted via facsimile transmitted via email hand-delivered to: Kirk R. Schauer, OBA #30245 Jesse L. Fettkether, OBA # 21173 11 4 E.M.B Brady St. Tulsa, OK 74103 (918) 938.7300 Fax: (800) 636-1020 kirk@918Legal.com ATTORNEY FOR PLAINTIFF Rebecca Jo DavidIN THE DISTRICT COURT IN AND FOR TULSA COUNTY STATE OF OKLAHOMA PLA-MOR PROPERTIES, LLC, an Oklahoma Limited Liability Company, Plaintiff, Case No.: CJ-2019-2569 v. Judge: William D. LaFortune DR. BRANDON BAILEY, DO, PLLC, an Oklahoma Professional Limited Liability Company doing business as EVOLVED HEALTH, and BRANDON BAILEY, an Individual, Defendants, DR. BRANDON BAILEY, DO, PLLC, an Oklahoma Professional! Limited Liability Company doing business as EVOLVED HEALTH, and BRANDON BAILEY, an Individual, Third-Party Plaintiffs, v. CORD ZOUZAS CHARVAT; KEVIN MATTHEW CHRISTIAN; PLA-MOR PROPERTIES, LLC; CHARVAT AND ASSOCIATES, LLC; AAA CLUB ALLIANCE, INC. SS Third-Party Defendants. PLAINTIFF PLA-MOR PROPERTIES, LLC’S FIRST SET OF INTERROGATORIES. REQUESTS FOR ADMISSION, AND REQUESTS FOR PRODUCTION TO DEFENDANT DR. BRANDON BAILEY, DO, PLLC The Plaintiff and Third-Party Defendant, Pla-Mor Properties, LLC (hereinafter “Pla-Mor” or “the Plaintiff"), hereby submits the following discovery requests pursuant to 12 O.S. §§ 3233, 3234 and 3236. You are required to answer each Interrogatory separately and fully, and to servea copy of the answers to the same upon Pla-Mor’s counsel within thirty (30) days after service. These discovery requests are deemed continuing to the full extent authorized by 12 O.S. § 3226(E). INSTRUCTIONS 1, These Interrogatories, Requests for Admission and Requests for Production (collectively “Discovery Requests”) are directed toward ail the information known or available to Dr. Brandon Bailey, DO, PLLC and/or its agents (collectively hereinafter “Dr. Brandon Bailey, DO, PLLC”), and any subsidiaries, affiliates, employees, agents, or attorneys, of Dr. Brandon Bailey, DO, PLLC, including information contained in the records and documents in their custody or control, or available to them upon reasonable inquiry. Where such Interrogatories cannot be answered in full, they shall be answered as completely as possible, and incomplete answers shall be accompanied by a specification of the reasons for incompleteness of the answer, and of whatever knowledge, information and belief is possessed with respect to each unanswered or incompletely answered Interrogatory. 2. In construing these Discovery Requests the singular shall include the plural and the plural shall include the singular. Any pronoun means the masculine or feminine gender and the singular or plural as in each case may be appropriate. The use of a verb in any tense shall be construed as the use of the verb in all tenses as is necessary. 3. These Discovery Requests shall be deemed continuing so as to require further and supplemental answers if you obtain information with respect to the subject matter of any of these Discovery Requests, which renders your answers thereto incomplete, inaccurate or in any way misleading. 4, Dr. Brandon Bailey, DO, PLLC should not give lack of information or knowledge as a reason for failure to admit or deny unless they state that they have made reasonable inquiryand that the information known or readily obtainable by them is insufficient to enable them to admit or deny. 5. As to every Interrogatory that you fail to answer in whole or in part on the grounds that the information sought involves a document or oral communication that you contend to be privileged or otherwise protected from disclosure, state in detail: (a) the portion of the interrogatory to which the response is claimed to be privileged; | (b) the identification of the document, as defined below; (c) the general subject matter of the document or communication; (d) the author and all recipients of any document, and the persons involved in any oral communication; (e) the identity of any other persons having knowledge of the document or communication involved; (f) the nature of the privilege claimed; and (g) every fact on which you base the claim of privilege or that the information need not be disclosed. 6. Except as otherwise provided, if you currently lack information to answer any Interrogatory completely, state: (a) the responsive information currently available; (b) the responsive information currently unavailable; (©) efforts which you intend to make to secure the information currently unavailable; and (d) when you anticipate receiving the information currently unavailable.7. Your failure to object to these Discovery Requests (including these instructions) in writing within thirty (30) days from service of the same shall be deemed a waiver of your right to so object. Any objection to these Discovery Requests must be included in your responses. DEFINITIONS 1 When used in these Discovery Requests, the pronouns “you,” “your” and “yours” and the terms “Defendant” or “Third Party Plaintiff’ or “Bailey Company” are intended to and shall embrace and include Dr. Brandon Bailey, DO, PLLC, subsidiaries, affiliates, and any other person acting or purporting to act on behalf of Dr. Brandon Bailey, DO, PLLC, and all of his agents, servants, employees, representatives, private investigators and others who are in possession of or may have obtained information for or on behalf of the party to whom these Interrogatories are directed. 2. The words “Person” and “Persons” include, without limitation, individuals, associations, partnerships, corporations and other companies. 3. The term “document” is used herein in its customary broad sense and means any kind of printed, recorded, written, graphic or photographic matter (including tape recordings), however printed, produced, reproduced, coded or stored, of any kind or description, whether sent or received or not, including originals, drafts, copies, non-identical copies or reproductions, summaries, reports, data compilations and tabulations, whether stored by mechanical, photographic or electronic means (including electronic data storage media of all types). The term “documents” shall also include, but not be limited to, the following: any writing, drawing, graph, chart, plat, map, photograph, motion picture film, phonograph record, tape and video recording, or any other records or data compilations from which information can be obtained. The term “document” shall also include, without limitation, each note, memorandum, letter, work paper, minutes, book, diary, calendar, appointment books, microfilm, opinion, appraisal, brochure, 4pamphlet, circular, telegram, release, article, analysis, transcript, agreement, accounting records, logs, maps, statistical records, work sheets or papers, and any other written, recorded, transcribed, punched, taped, filmed or graphic matter, however produced or reproduced and any other document or writing of whatever description, including, but not limited to, any information electronically stored. 4. “Describe” when used with respect to any statement or communication means to identify the person making the statement or communication, the date it was made, the person or persons to whom the communication was made and who witnessed the same, the contents of the communication and the place where it was made. 5. “Describe” when used in connection with an act means to provide the identity of the actor, the specific nature of the act, the date and place of the act and the identities of the individuals present. 6. “And” and “or” shall be construed both disjunctively and conjunctively. 7. “Identify,” “Identified,” or “Identification” (a) With respect to a document, means that you are requested to state the form of the document, the date of its preparation, the author, recorder or sender, each addressee or recipient, the subject matter, and the name and address of any person presently having custody or control of the same or a true copy thereof. If any document was, but is no longer within your possession, custody or control, state the disposition of the document and state all information you have as to its present location and its content or substance, if known. You may produce any document in lieu of identifying it. (b) — With respect to a natural person, means that you are requested to state the name (including any alias name), address, and telephone number of such person and thename, address, and telephone number of the last known person with or by whom such natural person is or was employed. (c) With respect to a person other than a natural person, means that you are requested to state the total and complete name thereof and any trade name (or other acronym) under which such person conducts business. If such person is a corporation, partnership, association or other entity, state the present or last known mailing address of that person and the address of its principal place of business. If such person is a corporation, state the state or commonwealth and nation of incorporation of that person. (d) With respect to an oral communication, means that you are requested to: state whether such communication was in person, by telephone, or otherwise; list the date, place, and persons present or otherwise involved in such communication; summarize the context of the communication; and identify each document within your possession, custody, control or knowledge which reports, summarizes, or otherwise memorializes or refers to such oral communication, or the subject matter of anything discussed or considered in such oral communication. (e) With respect to an action, omission, instance, incident or event, means that you are requested to: list as specifically as possible the date, place, time and persons present or involved; state the transactions or occurrences which were part of, transpired in or related to the action, omission, instance, incident or event being identified; identify each document within your possession, custody, control or knowledge which reports, summarizes, or otherwise memorializes or refers to such action, omission, instance, incident or event; and identify the capacity or capacities in which the persons present or involved were acting with respect to such action, omission, instance, incident or event.With respect to an allegation, claim, demand or cause of action, means you are requested to: identify all persons who asserted or made such allegation, claim, demand or cause of action; identify all persons against or on whom such allegation, claim, demand or cause of action was asserted or made; state the transactions or occurrences which were part of, transpired in or related to such allegation, claim, demand, or cause of action; identify each document within your possession, custody, control or knowledge which reports, summarizes or otherwise memorializes or refers to such allegation, claim, demand or cause of action; state the forum, if any, in which such allegation, claim, demand or cause of action was asserted or made; state the docket or case numbers assigned to any proceeding in which such allegation, claim, demand or cause of action was asserted or made; state whether such allegation, claim, demand or cause of action was criminal or civil in nature; and state the procedural status or disposition of such allegation, claim, demand or cause of action. (g) With respect to a location, place, site or destination, means that you are tTequested to: state the mailing address, street address, legal description and/or coordinates of such location, place, site or destination; state the city, county, state (or commonwealth), and country (other than the United States) in which such location, place, site or destination is located; and identify all persons who own, lease, sublease, rent or occupy such location, place, site or destination. 8. Any term not expressly defined herein is intended to have its customary, fair, and plain meaning within the context of the applicable Discovery Requests. INTERROGATORIES INTERROGATORY NO. 1: Identify the person or persons who answered, prepared, or assisted in answering or preparing the responses to these interrogatories by stating their name, title 7or position, and contact information (this is not a request for persons who only typed or formatted these responses). INTERROGATORY NO. 2: Fully identify Dr. Brandon Bailey, DO, PLLC by stating the full legal name, state and date of incorporation, primary address, members, and stating any parent company, affiliates, or “DBAs/trade names” related to said party INTERROGATORY NO. 3: Provide details for all insurance policies which may provide coverage for the claims brought by Pla-Mor against Dr. Brandon Bailey, DO, PLLC by stating the company providing coverage, policy number, nature of coverage provided, and limits under said policy. INTERROGATORY NO. 4: Identify each person Defendant intends to call as an expert witness at trial, and provide the contact information, the subject matter on which said expert is expected to testify, and the substance of the facts and opinions of said testimony, pursuant to 12 O.S. § 3226(B)(4). INTERROGATORY NO. 5: Describe and itemize the damages Defendant claims including any setoff, counterclaim, or otherwise asserts against Plaintiff in this matter. INTERROGATORY NO. 6: Provide a detailed witnesses list of persons who may have information pertinent to this litigation, include the name, phone number, and nature of facts that the witness may be able to testify to. INTERROGATORY NO, 7: Provide a detailed list of employees who worked for Defendant during the term of the lease, listing names, contact information and dates of employment. INTERROGATORY NO. 8:_ Describe in detail the facts and timeline of events which give rise to your allegations and claims against Pla-Mor Properties, PLLC, including, but not limited to when the alleged events occurred and when you learned of them.INTERROGATORY NO. 9:_ Describe in detail the alleged intrusion of Kevin Christian including the area(s) improperly accessed within your leased premises, the measures utilized to secure the premises, and the method Kevin Christian used to access the same. INTERROGATORY NO. 10: Describe the remedial measures taken by Defendant in an attempt to abate the issues raised by Defendant (to wit: the alleged intrusion of Kevin Christian). INTERROGATORY NO. ii: Describe all instances or correspondence in which Defendant gave notice of its issues to Plaintiff, including dates and method of notice (e.g. written, electronic, over the phone, in person). INTERROGATORY NO. 12: When did you begin shopping for a location to move to from the premises leased from the Plaintiff? INTERROGATORY NO. 13: What led to the decision to file a police report months after learning of the alleged intrusion? INTERROGATORY NO. 14: List the name of the security or alarm company, together with any account or identifying numbers, you utilized during your occupancy of the leased premises. INTERROGATORY NO. 15: Describe all evidence you have that Kevin Christian improperly entered your leased premises. INTERROGATORY NO. 16: Describe all evidence you have that Pla-Mor Properties, or any of its members, owners, or officers, had notice of the alleged behavior of Kevin Christian. INTERROGATORY NO. 17: Describe with specificity the improper conduct of Pla- Mor Properties that led to your claims against it. INTERROGATORY NO. 18: Describe all agents, brokers, or other contacts which served, contracted, or otherwise assisted you or your new iandlord in leasing the space at 811 W. New Orleans St. in Broken Arrow, OK.INTERROGATORY NO. 19: Describe in detail the factual basis and justification for the claims brought against the Plaintiff, including: a. Breach of Contract; b. Trespass; c. Negligence; d. Intentional Infliction of Emotional Distress; e. Negligent Hiring; and f. Punitive Damages. REQUESTS FOR ADMISSIONS REQUEST FOR ADMISSION NO. 1: Admit that the Lease attached hereto as Exhibit “A” is a true and accurate copy of the lease properly executed by Brandon Bailey on behalf of Brandon Bailey, DO, PLLC. REQUEST FOR ADMISSION NO. 2: Admit that the Personal Guarantee attached to the lease between the parties (as Exhibit A on the top of the document) and stamped and attached hereto as Exhibit “B” (on the bottom of the document) is a true and accurate copy of the Personal Guarantee executed by Brandon Bailey, individually. REQUEST FOR ADMISSION NO. 3: Admit that Brandon Bailey, DO, PLLC, breached its lease with Pla-Mor Properties, LLC. REQUEST FOR ADMISSION NO. 4: Admit that Brandon Bailey, DO, PLLC, is indebted to Pla-Mo Properties, LLC, in the amount pled in Plaintiff's petition. REQUEST FOR ADMISSION NO. 5:, Admit the decision to move your business was not a result of the alleged conduct of Kevin Christian.REQUEST FOR ADMISSION NO. 6: Admit that your business had video cameras on its premises. REQUEST FOR ADMISSION NO. 7: Admit that you have video evidence of the entry of Kevin Christian or other employees of the Plaintiff onto your portion of the leased premises. REQUEST FOR ADMISSION NO. 8; Admit that you have no evidence that the behavior of Kevin Christian was for the benefit of or under the direction or Pla-Mor Properties, LLC REQUEST FOR ADMISSION NO. 9: Admit that the police report filed April 10, 2019, by Shelly Hayes on behalf of Evolve Health and Wellness, is accurate. REQUEST FOR ADMISSION NO. 10: Admit that Pla-Mor Properties, LLC, was not notified of the alleged intrusion(s) in 2018. REQUEST FOR ADMISSION NO. 11: Admit that Pla-Mor Properties, LLC, was not notified of the alleged intrusion(s) prior to your decision to relocate. REQUEST FOR ADMISSION NO. 12: Admit that a police report was not filed until after you were advised that you were not going to be released from the lease. REQUEST FOR ADMISSION NO. 13: Admit that nothing was stolen from the leased premises in the alleged intrusion(s). REQUEST FOR ADMISSION NO. 14: Admit that you did not notify patients of any alleged intrusion(s), REQUEST FOR ADMISSION NO. 15: Admit Pla-Mor Properties, LLC, did not violate or breach the lease agreement. REQUEST FOR ADMISSION NO. 16: Admit Pla-Mor Properties, LLC, did not trespass. iYREQUEST FOR ADMISSION NO. 17: Admit Pla-Mor Properties, LLC, did was not negligent. REQUEST FOR ADMISSION NO. 18: Admit Pla-Mor Properties, LLC, did not intentionally inflict emotional distress. REQUEST FOR ADMISSION NO. 19: Admit Pla-Mor Properties, LLC, was not negligent in its hiring, training, supervision, or entrustment. REQUEST FOR ADMISSION NO. 20: Admit that after vacating the leased premises in question you moved to 81] W. New Orleans St., Broken Arrow, OK. DEFENDANT’S FIRST. UESTS FOR PRODUCTION REQUEST FOR PRODUCTION NO.1: Produce all communications, written electronic, or recorded, between you and Pla-Mor Properties, LLC, (including employees, members, owners, or agents of the respective companies) concerning the leased premises in anyway, including but not limited to notificationts) of the alleged intrusion(s), requested remedies, and discussions/notices concerning your decision to vacate the premises. REQUEST FOR PRODUCTION NO. 2: Produce all agreements signed or which you otherwise hold as legally binding between you and Pla-Mor Properties, LLC. REQUEST FOR PRODUCTION NO. 3: Produce all communications and related documents between yourself and anyone concerning the alleged intrusions. REQUEST FOR PRODUCTION NO. 4: Produce all documents, logs, ledgers, or other materials evidencing payments made by you or on your behalf to Pla-Mor Properties, LLC. REQUEST FOR PRODUCTION NO. 5: Produce all documents or things referenced, used to answer, or supporting your answer to Interrogatories or Requests for Admissions.REQUEST FOR PRODUCTION NO, 6:, Produce all documents, logs, ledgers, or other materials evidencing damages alleged by you. REQUEST FOR PRODUCTION NO. 7: Produce all evidence of the alleged intrusion of Kevin Christian into the premises leased by you, including, but not limited to, evidence recorded by security cameras. REQUEST FOR PRODUCTION NO. 8: Produce all entrance, disarm, —_ and entrance/exit logs from any security, alarm, or entrance system utilized at the leased premises by you. REQUEST FOR PRODUCTION NO. 9: Produce all documents and things related to your search and acquisition of an alternative premises, including but not limited to any agent or broker agreements, term sheets, and a copy f the lease for the premises to which you moved. REQUEST FOR PRODUCTION NO. 10: Produce correspondence with a broker, agent or landlord inquiring about, negotiating, finalizing, or otherwise referencing Defendant's search for a new location. REQUEST FOR PRODUCTION NO. 11: Produce a copy of all documents and things which support or rebut your claims, counterclaims, or defenses. REQUEST FOR PRODUCTION NO. 12: Produce copies of all documents and exhibits which you intend to or may utilize at the time of trial in this lawsuit. REQUEST FOR PRODUCTION NO. 13: Produce any documents evidencing remedial measures taken by Defendant to remedy the alleged breach. KM Sehauey/OBA #30245 vlJesse L. Fettkether, OBA #21173 11 ¥%E. Reconciliation Way Tulsa, OK 74103-7800 (918) 938-7300 Fax: (800) 636-1020 Kirk @918Legal.comCERTIFICATE OF MAILING I hereby certify that on this 17th day of March, 2020, I mailed a true and correct copy of the foregoing instrument via first class mail with the proper postage fully prepaid thereon to: Nick Larby, Esq. Larby & Associates 1874 S. Boulder Ave. Tulsa, OK 74119 Attorney for Defendant/Third-Party Plaimiff Jesse |Z. Fettkether 15This is a legally binding Contract; if not understood seek advice from an attorney. OFFICE BUILDING LEASE THIS LEASE is entered into by and between Landlord and Tenant and upon approval by both Landlord and Tenant, as evidenced by their signatures hereto, a valid and binding Lease shall exist, the terms and conditions of which are as follows: 1. DEFINITIONS AND BASIC PROVISIONS. The following definitions and basic provisions shall be construed as follows when used elsewhere in this Lease: a) Effective Date: The Effective Date shall be the latest date for approval by all parties as indicated below. b) Landlord: _ Play-Mor Properties, LLC c/o Cord Charvat Address __721 W. Queens Street, Broken Arrow, OK 74012 Phone No. ___ 918-932-6343 c) Tenant: Brandon Bailey, DO PLLC clo __Brandop Bailey Address 3621 $. Elder Boulevard, Broken Arrow, OK _74011 Phone No. __ 620-330-0360 d) Third Party Guarantor: ___ Brandon Bailey __ Guarantor Agreement attached hereto as Exhibit Address 3621 §. Elder Boulevard, Broken Arrow, OK 74011 Phone No. __620-330-0360. e) Leased Premises: Approximately 4,923 square feet, Suite No. in the building located at__721 W. Queens Street, Broken Arrow, OK 74012 in Tulsa______ County, County, Oklahoma, such premises being shown and outlined on the plan attached hereto as Exhibit (N/A) f) Project: Use: Medical Clinic Tenant, as evidenced by his signature below, has determined and represents that the stated use is consistent with ali local, State and Federal regulations applicable to said use. h) Legal Use. Tenant shall use the Leased Premises only for the use stated and for no other purposes. Tenant shall not use, nor permit the use of, anything in the Leased Premises (i) which would violate any of the agreements of the Lease, (ii) for any unlawful purpose or in any unlawful manner, or (iii) that would substantially increase cost of the Landlord’s insurance. i) Lease Term: A period of, 60 Months and 14 Days commencing on ___December 18, 207 (‘Commencement Date”) and ending on December 31. 2022 (“Expiration Date"). PD) Base Rental: A total of $ 341,460.34 (total base rentals) payable in monthly installments in advance as follows: From To Monthly Rate December 1: 17, December 31, 2017 $_-0- January 1, 2018 January 17,2018 $_-0- January 18, 2018 January 31,2018 $_2,593.84 Year_1 Fe 31,2018 December 31, 2018 $_5,743,50 Year_2 January 1, 2019 December 31,2019 ‘$_S,743.50 Year_3_ January 1, 2020 December 31, 2020 $_5,743,50 Year_4_ January 1, 2021 December 31, 2021 $_5,743,50 Year_S. January 1, 2022 December 31, 2022 $_5,743,50 ‘Standard Office Building Lease (2701) 11/2013 EXHIBIT A [* Bauer & Associates, Inc., 4821 $, Sheridan, Suite 201, Tulsa, OK 74145 Phone. (918) 665-1210 Fax; (918) 665-6462 Pla-Mor Discovery Request Exhibit A.1 jo M1S-t7 docxOFFICE BUILDING LEASE (Continued) k) Prepaid Rental: $___2,593.84 representing payment of rental for the first month of the Lease Term. 1) Security Deposit: $__ 5,000.00 (not applicable taward last month’s rent). m) Parking: (Check one) _X_ no charge to be used in common by all tenants and guests. spaces allocated for the Leased Premises, additional parking at a cost of $ per space per month, a) Tenant’s Public Liability Insurance Limits: $ __1,000,000.00. combined single limit bodily injury and property damage as described in paragraph 5(h). o} Operating Expenses: Operating Expenses included in the Base Rental shalt be either $ N/A per square foot OR the proportional share of actual expenses for base year A p) Services by Landlord: Landlord agrees to furnish Tenant, while Tenant occupies the Leased Premises, the following services during the normal business hours established for the building, 7:00 a.m. to 7:00 p.m., Monday through Friday, and 8:00 a.m. to 12:00 noon on Saturday, excluding Sundays and holidays: water, electric service, heating and air conditioning, and janitorial services, including trash removal as may, in the judgment of the Landlord, be reasonably required. Should any equipment or machinery furnished by Landlord cease to function properly, Landlord shail use reasonable diligence to provide prompt repair, but Tenant shall have no claim for rental abatement or damages on account of any interruption in service, or for the interruption of utility or services beyond Landlord’s control. 2. GRANTING CLAUSE. Landlord hereby covenants and warrants that it has rightful possession to, and hereby leases, lets, and demises unto Tenant, together with all improvements, appurtenances, easements. and privileges thereunto belonging, the Leased Premises for the Permitted Use, together with on-site parking. if any. 3, PAYMENT OF RENT. Tenant agrees to pay to Landlord the monthly base rental, with such monthly installments to be paid in advance, on or before the first day of each calendar month during the term, without demand. Tenant shall pay the first monthly installment as “prepaid-rental” concurrently with the execution of this Lease. The rent for a portion of the calendar month during which rent might begin to accrue or terminate shall be prorated. With the exception set forth in Paragraphs 5 (I) and 5 (m), Tenant's covenant to pay rent shail be independent of every other covenant set forth in this Lease, and Tenant shall have no right of deduction or setoff whatsoever. All rents herein provided for shall be paid to Landlord at the Landlord's address or at such other place as shall be designated by Landlord, in writing, furnished to Tenant at least ten (10) days prior to the next ensuing rent payment due date. Operating Expense Increase/Additional Rent. Any operating expense proportionately allocated to the Leased Premises, in excess of those set forth in Paragraph I (0) above, shall be charged and billed to the Tenant as Additional Rent, payable as follows: N/A Building operating expense to include, but not be limited to the following: taxes and insurance, utilities (water, gas, electricity, heating and air conditioning, building management fees, maintenance (including necessary non capital replacements), fixtures and equipment, exterior lighting, roof, exterior maintenance, common area maintenance (including entry ways, stairways, hallways, parking lots and driveways, restrooms, landscaping, and janitorial services), trash removal, window washing, sweeping, and snow and ice removal from parking area and driveways. 4, LATE PAYMENT OF RENT. Any rents received on the 5 day after the due date, or thereafter, shall be assessed in the amount of $100.00 or the maximum late fee amount allowable by law whichever is less. 5. GENERAL PROVISIONS. a) Flood Notification. If required by a City or County governmental agency, Landlord shall deliver to Tenant prior to Tenant signing this lease notice in writing if Property is located in an area designated as a flood hazard area as defined by such City and/or County governmental agency. b) Repairs, Landlord shall keep and maintain the roof, exterior walls, structure, floor slabs, public stairways and corridors, lavatories, equipment, lights and fixtures and common facilities of the building in good condition and repair. Tenant shall keep the Leased Premises neat and clean and in such order, and condition as received on Commencement Date (or Occupancy Date, whichever is earliest), or may be put in during the term hereof, reasonabie use and wear excepted. Tenant shall neither damage or abuse. nor permit the damage or abuse of, the Leased Premises. Tenant shall not overload the floor and shall abide by Landlord’s instructions with respect to care and avoidance of abuse. Tenant shall not overload the electrical system and shall abide by Landlord's instructions with respect to care and avoidance of abuse. ¢} Possession. Unless otherwise agreed to in writing, possession shall be delivered on the Commencement Date of this Lease. If Landlord is unable to deliver possession of the Leased Premises at the commencement hereof, Landlord shail not be liable for any Standard Office Building Lease (4701) 1/2013 Page 2 of 6 Baver & Associates, Inc. 4921 S. Sheridan, Suite 201, Tulsa, OK 74145 Fac: (918) 665-6402 Pla-Mor Discovery Request Exhibt AS” bbb Play-Mor to Bailey, 11-15-17. does,OFFICE BUILDING LEASE (Continued) damage caused thereby, nor shall this Lease be void or voidable, but Tenant shall not be liable for any rent until possession is delivered. Tenant may terminate this lease if possession is not delivered within 30 days of the commencement of the term. 4) Assignment, Subletting, and Encumbering. This Lease shall not be assigned. sublet, or transferred by Tenant without Landlord's prior written consent. Tenant shall not sublet, or offer or advertise for subletting, the Leased Premises, or any portion thereof, without the prior written consent of Landlord. Any assignment or subletting shall not relieve Tenant of its obligations hereunder or release Tenant from the further performance of all covenants herein contained. ) Estoppel Certificate. Tenant shall, at any time so requested, execute and deliver to Landlord such Estoppe! certificates as Landlord shall reasonably require, stating length of Tenant's Lease, amount of rent, deposits, and other terms. f) Subordination. This Lease shail be subject and subordinate, at all times, to the lien of existing mortgages and of mortgages which hereafter may be made on the Leased Premises. Tenant will execute and deliver such further instruments subordinating this Lease to the fien of any such mortgages as may be desired by Landlord. g) Tenant's Public Liability and Loss or Damage, Tenant shall procure, keep in force, and pay for comprehensive public liability insurance, in amounts reasonably required by Landlord, with reputable, responsible licensed companies, indemnifying Landlard and Tenant against all claims and demands for injury to, or death of, persons or damage to property, which may be claimed to have occurred on the Leased Premises. Landlord shall be named as additional insured and Certificates of the same shall be provided to the Landlord. Landlord shall insure the building and its structure and Tenant shall insure all of Tenant's contents. h) Toxic or Hazardous Materials. Tenant shall not store. use, or dispose of any toxic or hazardous materials in, on, or about the Leased Premises, without the prior written consent of Landlord. Tenant, at its sole cost, will comply with all laws relating to Tenant's storage, use, and disposal of hazardous or toxic materials. i) Indemnity, Liability and Loss or Damage. Tenant agrees to defend, indemnify, and hold Landlord harmless from any loss, cost, or expense, whatsoever, resulting from (i) personal injury, loss of life, or loss of property relating to the use and occupancy by Tenant, or (ii) from damage to, or destruction of, the Project structure, or any part thereof, or of any abutting real property caused by, or attributable to, the negligent act or acts, or omission or omissions to act, of Tenant, or caused by, or attributable to, the Tenant's failure to perform its obligations under this Lease. Likewise, Landlord agrees to defend, indemnify, and hold Tenant harmless from any loss, whatsoever, resulting from personal injury, loss of life or property relating to the use of Landlord and use and occupancy by other tenants, or caused by, or attributable to, the negligent act or acts, omission or omissions to act, of Landlord, or caused by, or attributable to, Landlord's failure to perform its obligations under this Lease. f) Holding Over/Option to Renew. In the event Tenant remains in possession of the Leased Premises after the expiration or termination of the Lease, Tenant shall occupy the Leased Premises as a Tenant from month-to-month at 150% of the rental due for the last full calendar month during the term of the Lease and subject to all other provisions and obligations of the Lease applicable to a month-to-month tenancy. Tenant shall also have the option to renew this lease agreement for one (1) three (3) year lease period. Rent for the option period shall be increased by four percent (4%) and Tenant shall give Landlord ninety (90) days written notice of their intent to exercise this option to renew. k) Signs. No sign, notice, or other advertisement shall be inscribed, painted, affixed, or displayed on any of the windows or doors ‘or on any other part of the outside or the inside of the Leased Premises without prior written consent of Landlord or its agents. Consent shall not be unreasonably withheld. All signage must meet City of Broken Arrow regulations. See Exhibit “B”. 1) Destruction of Leased Premises. In the event of a partial destruction of the building in which the Leased Premises are contained, during the term, Landlord shall make any repairs that can be made under existing governmental regulations within one hundred twenty (120) days of such destruction, but such partial destruction shail not terminate this Lease. except that Tenant shall be entitled to a proportionate reduction of rent while repairs are being made, based upon the extent to which the making of such repairs shall interfere with the business of Tenant on the Leased Premises. If repairs cannot be made within onc hundred twenty (120) days, this Lease may be terminated, at the option of either party, by delivering written notice. Right of Entry. Landlord reserves the right to retain passkeys to the Leased Premises at all times. Landlord reserves the right, for itself, and its employees, or contractors, and Tenant covenants to permit Landlord, or Landlord's agents, employees, or contractors to enter any and all portions of the Leased Premises at any time; provided, that Landlord shall give Tenant reasonable notice prior to any entry for the purpose of showing the space to prospective tenants. Tenant shall permit ‘Standard Office Building Lease (2701) 1/2013 Page 3of6 Baver & Associates, Inc. 4821 9. Sheridan, Sulte 201, Tulsa, OK 74145, Pla-Mor Discovery Request EXRIBRAS Poses ‘Ub - Play-Mor 1o Bailey, 11-15-17 docxOFFICE BUILDING LEASE (Continued) Landlord at any time within sixty (60) days prior to expiration of this lease to place upon the Leased Premises the usual “For Lease" or “For Sale” signs, and permit persons desiring to lease or purchase the same to inspect the Leased Premises thereafter. Any such right of entry by Landlord shali nat be made in violation of HIPPA or any other state or federal regulation governing the right to patient privacy. During the progress of any repairs or other work, Landlord may keep and store on the Leased Premises all necessary materials, tools, and equipment, and Landlord shail, in no event, be liable for disturbance, inconvenience, annoyance, loss of business, or other damage to Tenant, or any assignee, or sublessee under the Lease, by making such repairs or performing any such work on or in the Leased Premises, or due to bringing materials, supplies, and equipment into or through the Leased Premises during the course of such work n) Condemnation. If the Leased Premises is totally candemned by any lawful authority under the power of eminent domain, or shall, during the continuance of the Lease, be totally destroyed by the action of public authorities, then this Lease and the term leased shall terminate, and Tenant shail be Jiable for rent only up to the date of such termination. ©) Quiet Enjoyment. Landlord grants to Tenant, in exchange for continued payment of rent and performance of each and ‘every covenent hereof. the right to peacefully and quietly hold, occupy, and enjoy the Leased Premises throughout the term. Further, Tenant shall not commit any waste upon the Leased Premises, or any nuisance or act which may disturb the quiet enjoyment of any tenant in the building. 6. LANDLORD'S LIEN. In consideration of the mutual benefits arising under this Lease, Tenant hereby grants to Landlord a lien and security interest in and on all property Tenant now, or hereafter, may place in or upon the Leased