Motion for Compliance or Status in ROBERT COREY, ET AL vs NATIONWIDE RETAIL SERVICES, INC., ET AL| Trellis.Law

On January 28, 2020 a PLTF RESP DEFN GLOBAL REQ STATUS CONFERENCE/X-MOT was filed involving a dispute between and for CONTRACT, OTHER CONTRACT in the District Court of Tarrant County.

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352-314831-20 FILED
TARRANT COUNTY
5/11/2021 1:40 PM
THOMAS A. WILDER
CAUSE NO. 352-314831-20 DISTRICT CLERK

ROBERT COREY, EARL COREY, § IN THE DISTRICT COURT
and C&C ELECTRIC, INC., §
§
Plaintiffs, §
§
v. §
§ 352ND JUDICIAL DISTRICT
NATIONWIDE RETAIL SERVICES, §
INC., RANDALL HUGHES, GLOBAL §
FIXTURE SERVICES, INC. and §
DUSTIN HUGHES, §
§
Defendants. § TARRANT COUNTY, TEXAS

PLAINTIFFS’ RESPONSE TO GLOBAL FIXTURE SERVICES, INC.’S
REQUEST FOR STATUS CONFERENCE, AND CROSS-MOTION
FOR ENTRY OF AMENDED SCHEDULING ORDER

Plaintiffs Robert Corey and Earl Corey, and C&C Electric Inc. (together, “Plaintiffs”)

submit this Response to Global Fixture Services, Inc.’s (“Global’s”) Request for Status

Conference, and respectfully request that the Court enter the proposed Amended Scheduling

Order submitted herewith as Exhibit A.

I. PRELIMINARY STATEMENT

The parties have agreed to the dates set forth in the proposed Amended Scheduling Order

attached hereto as Exhibit A. But the parties disagree on whether defendants constitute one

“side” for purposes of deposition time limits. Specifically, although Plaintiffs have agreed to

give defendants ten (10) hours of deposition for Robert Corey, Global contends that it should be

considered a separate “side” and have another six (6) hours – for a total of sixteen (16) hours to

depose Robert Corey – simply because it was joined after the initial scheduling order was

entered. Global’s contention is contrary to Texas law. Because defendants have common

interests in this action, they should be considered one “side” for purposes of deposition time

PLAINTIFFS’ RESPONSE TO GLOBAL’S REQUEST FOR STATUS CONFERENCE PAGE 1
limits under TEX. R. CIV. P. 190.3(b)(2) and 199.5(c). Accordingly, the Court should enter

Plaintiffs’ proposed Amended Scheduling Order, and Defendants can allocate the allotted time

for Robert Corey (and other deponents in the case) among themselves as the Texas rules require.

II. BACKGROUND

On October 2, 2020, the Court entered the current scheduling order. The initial

scheduling order expanded the traditional six-hour deposition time limit for the depositions of

plaintiff Robert Corey and defendant Randall Hughes, so that Messrs. Corey and Hughes could

each be deposed up to ten hours by each side.1

On December 18, 2020, Plaintiffs filed their Second Amended Petition, which added

Global and Dustin Hughes as defendants. Plaintiffs contend Global has been controlled by

Hughes and assert claims against Global and Dustin Hughes for aiding and abetting Hughes’

breaches of fiduciary duties and civil conspiracy.2

Nationwide Retail Services (“NRS”) and Hughes have each asserted virtually identical

counterclaims against Plaintiffs.3 On February 19, 2021, Global filed counterclaims against the

Coreys that mirror the allegations in NRS and Hughes’ counterclaims.4 NRS, Hughes, and

Global all allege that Robert Corey underbilled Global for work performed for NRS.5

1
See Scheduling Order, dated October 2, 2020, at ¶ 4(a) (“The six (6) hour limitation of Rule
199.5(c) with regard to depositions of Randall Hughes and Robert Corey in their individual
capacities, is extended so that each may be examined or cross-examined by a side for not more
than ten (10) hours.”).
2
See Second Amended Petition, filed December 18, 2020, at ¶¶ 68-77
3
See generally Hughes’ Amended Answer and Original Counterclaim, filed December 18, 2020;
NRS’s First Amended Counterclaim, filed December 18, 2020.
4
See Global’s Original Counterclaims, filed February 19, 2021.
5
Compare NRS’s First Amended Counterclaim, filed December 18, 2020, at ¶ 3.13(k)(iii)
(“Robert Corey did not include the total for that week’s invoice all of the jobs worked by Global

PLAINTIFFS’ RESPONSE TO GLOBAL’S REQUEST FOR STATUS CONFERENCE PAGE 2
The parties agree that additional time is needed to adequately prepare this case for trial.

The parties are stillconducting written discovery and exchanging documents, and still need to

conduct necessary depositions –including the depositions of each of the parties. To that end, the

parties negotiated an amended schedule and reached agreement with respect to the dates as set

forth in the proposed amended schedule attached hereto as Exhibit A.

However, the parties disagree on what constitutes a “side” for purposes of deposition

time. Plaintiffs contend defendants constitute one “side” under the applicable rules and, as a

result, defendants are not entitled to more than ten hours of deposition time with Robert Corey.

Although Hughes has exercised control over NRS and Global, Global and Hughes contend they

are on separate “sides” for purposes of deposition time. Thus, NRS and Hughes seek to depose

Robert Corey for ten hours, and Global seeks to depose Mr. Corey for an additional six hours.

III. ARGUMENT

Under TEX. R. CIV. P. 199.5(c), “[n]o side may examine or cross-examine an individual

witness for more than six hours” absent agreement or court order expanding the time limitation.6

In determining what constitutes a “side” for purposes of deposition time, TEX. R. CIV. P.

190.3(b)(2) provides that “‘Side’ refers to all the litigants with generally common interests in the

litigation.”7 Comment 6 to Rule 190.3(b)(2) goes on to explain that “[t]he concept of ‘side’ in

that week. On information and believe, the number of jobs and the dollar amount of those jobs
worked by Global but never billed to NRS was substantial.”) and Hughes’ Amended Answer and
Original Counterclaim, filed December 18, 2020, at ¶ 6.17(k)(iii) with Global’s Original
Counterclaims, filed February 19, 2021, at ¶ 11 (“Robert [Corey] routinely failed to bill [NRS] or
underbilled [NRS] for serviced performed by Global, resulting in substantial underpayments to
Global.”).
6
See TEX. R. CIV. P. 199.5(c) (emphasis added); TEX. R. CIV. P. 191 Cmt. 1.
7
TEX. R. CIV. P. 190.3(b)(2).

PLAINTIFFS’ RESPONSE TO GLOBAL’S REQUEST FOR STATUS CONFERENCE PAGE 3
Rule 190.3(b)(2) borrows from Rule 233.”8 In the context of Rule 233, Texas courts have noted

that “[t]he term ‘side’ is not synonymous with ‘party,’ ‘litigant,’ or ‘person.’ Rather ‘side’

means one or more litigants who have common interests on the matters with which the jury is

concerned.”9 The key consideration in determining whether litigants constitute a “side” is

whether, and to what extent, any “antagonism” exists between them.10 If there is no antagonism

between the litigants they are deemed to be on the same “side.”11

In this case, all defendants generally have common interests and, thus, should be

considered one “side” for purposes of deposition time limits.12 Plaintiffs allege that Hughes,

NRS, Global, and Dustin have engaged in a scheme to improperly divert funds from NRS for the

benefit of Hughes and members of his family in breach of Hughes’ fiduciary duties to the Coreys

and NRS.13 And in their counterclaims, NRS, Hughes, and Global each assert the same

allegations against Coreys, alleging that Robert Corey underbilled NRS for work performed for

Global.14 Moreover, there is no antagonism between defendants in this case. In fact, just the

opposite – defendants’ counsel coordinate with each other on scheduling and discovery issues,

8
See TEX. R. CIV. P. 190.3, Cmt. 6.
9
See, e.g., Moore v. Altra Energy Techs., Inc., 321 S.W.3d 727, 741 (Tex. App.—Houston [14th
Dist.] 2010, pet. denied) (citing TEX. R. CIV. P. 233 and Patterson Dental Co. v. Dunn, 592
S.W.2d 914, 917 (Tex. 1979)).
10
See, e.g., id.
11
See id. (analyzing the term “side” in the context of TEX. R. CIV. P. 233). Antagonism may be
revealed from the parties’ pleadings in the form of cross-claims or other claims against each
other. Id.
12
NRS and Hughes have already agreed that they are one “side” for purposes of deposition time
limitations.
13
See, e.g., Plaintiffs’ Second Amended Petition at ¶¶ 17-19, 66, 70.
14
See supra Note 5.

PLAINTIFFS’ RESPONSE TO GLOBAL’S REQUEST FOR STATUS CONFERENCE PAGE 4
and no defendant has asserted a cross-claim against another defendant. That, of course, is not

surprising because the individual defendants (Hughes and Dustin) are father-son, and Hughes has

controlled both NRS and Global.

Furthermore, Global’s request for sixteen hours of total deposition time with Robert

Corey (and twelve hours of deposition time with other plaintiffs) is unreasonable and abusive –

especially considering how defendants are aligned and have asserted overlapping allegations in

their counterclaims against Mr. Corey. Plaintiffs have agreed to extend the time for defendants

to depose Mr. Corey from six hours to ten hours, which will require Mr. Corey to make himself

available for two days of deposition (and defendants have agreed to the same time limitation

with respect to Hughes’ individual deposition). Global fails to explain why defendants cannot

complete Mr. Corey’s deposition in ten hours over two days, and Global does not offer any basis

to justify their request to expand Mr. Corey’s deposition to sixteen hours, which would likely

require three days to complete. Accordingly, Plaintiffs request that the Court limit the deposition

of Robert Corey to no more than ten hours of total deposition time and confirm that Hughes,

NRS, Global, and Dustin Hughes constitute one “side” for purposes of the deposition time

limitations set forth in TEX. R. CIV. P. 199.5(c) and the Amended Scheduling Order.15

IV. CONCLUSION AND REQUEST FOR RELIEF

WHEREFORE, Plaintiffs request that the Court enter the Amended Scheduling Order

attached hereto as Exhibit A and confirm that Hughes, NRS, Global, and Dustin Hughes

constitute one “side” for purposes of the deposition time limitations set forth therein.

15
If defendants cannot come to an agreement on how to allocate deposition time, Plaintiffs ask
that the Court apportion deposition time evenly among each defendant to ensure that defendants
stay within the time limitations set forth in the Amended Scheduling Order and TEX. R. CIV. P.
199.5(c).

PLAINTIFFS’ RESPONSE TO GLOBAL’S REQUEST FOR STATUS CONFERENCE PAGE 5
Respectfully submitted,

GARDNER HAAS PLLC

By: /s/ Eric P. Haas
Eric P. Haas
State Bar No. 24050704
eh@gardnerhaas.com
Alex S. Cleeter
State Bar No. 24097505
ac@gardnerhaas.com

2501 North Harwood
Suite 1250
Dallas, Texas 75201
Telephone: (214) 712-8280

ATTORNEYS FOR PLAINTIFFS
ROBERT COREY, EARL COREY,
and C&C ELECTRIC, INC.

CERTIFICATE OF CONFERENCE

Counsel for Plaintiffs have conferred with counsel for defendants regarding the issues
presented in this cross-motion. To date, counsel have not been able to resolve the matters
presented.

/s/ Eric P. Haas
Eric P. Haas

CERTIFICATE OF SERVICE

I hereby certify that, on May 11, 2021, a true and correct copy of the foregoing document
is being served upon counsel of record by e-file.

/s/ Eric P. Haas
Eric P. Haas

PLAINTIFFS’ RESPONSE TO GLOBAL’S REQUEST FOR STATUS CONFERENCE PAGE 6
Exhibit A
CAUSE NO. 352-314831-20

ROBERT COREY, EARL COREY, § IN THE DISTRICT COURT
and C&C ELECTRIC, INC. §
§
Plaintiffs, §
§
v. § 352nd JUDICIAL DISTRICT
§
NATIONWIDE RETAIL SERVICES, INC., §
RANDALL HUGHES, GLOBAL FIXTURE §
SERVICES, INC. and DUSTIN HUGHES §
§ TARRANT COUNTY, TEXAS
Defendants. §

AGREED AMENDED SCHEDULING ORDER

In accordance with Rules 166, 190, and 192 of the TEXAS RULES OF CIVIL PROCEDURE, the
following Order shall apply to this case unless modified by the court. If no date is given below,
the item is governed by the TEXAS RULES OF CIVIL PROCEDURE. Compliance with this
Scheduling Order will not substitute for timely response to any discovery requests or
interrogatory supplementation.

1. June 25, 2021. PLEADINGS. Any amended pleading asserting a new cause of action or
a new affirmative defense must be filed by this date. This Order does not preclude prompt filing
of pleadings directly responsive to any timely filed pleadings.

2. EXPERT WITNESSES. Expert witness designations must include the information listed
in Rule 194.2(f). Expert designations must be made by the dates listed below:

(a) July 30, 2021. Expert designations in support of claims seeking affirmative relief
must be served by this date.

(b) September 15, 2021. All other expert designations must be served by this date.

3. December 15, 2021. DISCOVERY. Discovery closes on this date. Parties seeking
discovery must serve requests sufficiently far in advance of the end of the discovery period that
the deadline for responding will be within the discovery period. Counsel may conduct discovery
beyond this deadline by agreement.

(a) Total time for oral depositions. Each side may have no more than 50 hours in
oral depositions to examine and cross-examine parties on the opposing side, experts
designated by those parties, and persons who are subject to those parties’ control.
“Side” refers to all the litigants with generally common interests in the litigation
and, for avoidance of doubt, Plaintiffs Robert Corey, Earl Corey, and C&C Electric
constitute one “side,” and Defendants Nationwide Retail Services, Inc., Randall
Hughes, Global Fixture Services, Inc., and Dustin Hughes constitute another

AGREED AMENDED SCHEDULING ORDER PAGE 1
“side.” The six (6) hour limitation of Rule 199.5(c) with regard to depositions of
Randall Hughes and Robert Corey, in their individual capacities, is extended so that
each may be examined or cross-examined by a side for not more than ten (10) hours.

(b) Interrogatories. Any party may serve on any other party no more than 25 written
interrogatories, excluding interrogatories asking a party only to identify or
authenticate specific documents. Each discrete subpart of an interrogatory is
considered a separate interrogatory.

4. December 10, 2021. CHALLENGES TO EXPERT TESTIMONY. All motions to
exclude expert testimony and evidentiary challenges to expert testimony must be heard by this
date. Any objection to the qualifications of an expert witness or to the reliability of an expert’s
opinion must be filed not later than November 19, 2021. It is the responsibility of the party making
such objection to obtain a timely hearing on the objection.

5. November 5, 2021. MEDIATION, or a hearing on objection to mediation, must occur by
this date. Unless an objection to mediation is sustained by the Court, counsel are jointly responsible
for participating in mediation of this case, with a mediator agreed to by the parties. If the parties
cannot agree to a mediator, one will be appointed by the Court. A party’s failure to participate in
mediation will result in sanctions.

6. December 10, 2021. DISPOSITIVE MOTIONS must be heard by this date. All motions
for summary judgment shall be filed not later than November 19, 2021.

7. January 17, 2022. TRIAL EXHIBITS AND WITNESS LISTS. The parties shall
exchange lists of trial exhibits and witness lists by this date.

8. January 24, 2022. A JOINT PRE-TRIAL ORDER, in the form required by the Court,
shall be filed by this date.

9. January 31 , 2022. TRIAL IS SET FOR THIS WEEK. Trial is set to begin on Monday,
January 24, 2022. This is a special setting.

Dated: __________________________, 2021.

______________________________
Josh Burgess, Judge Presiding

AGREED AMENDED SCHEDULING ORDER PAGE 2

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