Motion,Ex Parte: DYER CRAIG vs. DYER CUSTOM INSTALLATIONDCX

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CAUSE NO. 04-01100-M 17 pnw
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“CRAIG DYER, § IN THE DISTRICT COURT ,
§ .
Plaintiff, §
§
VS. §
§ 298 JUDICIAL DISTRICT
DYER CUSTOM INSTALLATION, INC. §
(DCI), JOSEPH GEETING, §
SUSAN LAMBERT, RICHARD GEETING §
and LAURI GEETING, §
§
Defendants. § DALLAS COUNTY, TEXAS

DEFENDANTS’ MOTION TO COMPEL
THE DEPOSITION OF MITCHELL MADDEN

TO THE HONORABLE JUDGE OF SAID COURT:

COME NOW, Dyer Custom Installation, Inc. and Joseph Geeting (collectively,
“Defendants”) and file this their Motion to Compel the Deposition of Mitchell Madden
(“Madden”), and in support of this motion would show unto this Honorable Court the following:

1.
FACTUAL BACKGROUND

1.01 Madden is an indispensable fact witness in this case. Craig Dyer (“Dyer”),
plaintiff in this action, was once DCI's president and sat on its board of directors. While Dyer
was still on the board and was still the president of DCI, he performed appliance installation
services, on DCI’s behalf, for Madden. True and correct copies of the invoices for Dyer’s work
on Madden’s property are attached as Exhibit “A” and incorporated by reference. Exhibit A
establishes that Dyer and Madden had a business relationship before they formed an attorney-
client relationship. Furthermore, Madden’s check for the work performed by Dyer on DCI’s

behalf was not made out to DCI, but was instead made out directly to Craig Dyer. A true and

 

DEFENDANTS’ MOTION TO COMPEL THE DEPOSITION OF MITCHELL MADDEN Page 1 of 9correct copy of the check is attached as Exhibit “B” and incorporated by reference. Exhibit B is
evidence that Dyer was embezzling funds from DCI while he was still an officer and director of
DCI. The conversations and circumstances leading to the embezzlement of DCI funds are only
within Madden’s personal knowledge. Madden cut a check directly to Dyer for services
rendered by DCI for an amount far less than the total invoice. See Exhibit “A” and “B”.
Moreover, the facts surrounding the work performed on Madden’s home, the cutting of the
check, and the circumstances surrounding these events is discoverable. Dyer is attempting to
hide behind the attorney-client privilege even though no such privilege existed at the time.

1.02 It was not until after Dyer and Madden first met, that Dyer was removed as
president from DCI, a true and correct copy of DCI’s Corporate Records are attached as Exhibit
“C” and incorporated by reference, and that Dyer resigned from DCI’s board of directors, Dyer’s
letter of resignation is attached as Exhibit “D” and incorporated by reference. A month later, on
January 10, 2004, Dyer hired Madden as his attorney, a true and correct copy of Madden’s
representation agreement with Dyer is attached as Exhibit “E” and incorporated by reference.
Madden then filed Dyer’s Original Petition in this lawsuit on February 11, 2004. Subsequent to
the filing of this suit, on or about July 20, 2004, Madden and Dyer went into the appliance
installation business together when they formed Dyer Mechanical Services, LLC for the purpose
of competing directly with DC]. Based upon the foregoing, there is no question that Madden and
Dyer have a business relationship separate and apart from their attorney-client relationship.
There is also no question that Madden is a fact witness as to Dyer’s embezzlement of DCI funds
and the breach of his fiduciary dutics to DCI as its president. The attached documents reveal
only small snapshots in time, though their existence suggests a much larger story involving

Madden’s role in the facts leading up to this lawsuit, a role that its far removed from his role as

 

DEFENDANTS’ MOTION TO COMPEL THE DEPOSITION OF MITCHELL MADDEN, Page 20f9an attorney. Madden’s role appears to be one of an accomplice in orchestrating the formation of
a company to compete against DCI. For these reasons, DCI is entitled to Madden’s deposition.

1.03 On or about November 16, 2006, Defendants served Dyer’s counsel and Mitchell
Madden, individually, with the State of Texas Subpoena Duces Tecum to Mitchell Madden (the
“Subpoena”), a truce and correct copy of which is attached as Exhibit “F” and incorporated by
reference. The Subpoena orders Madden to attend his deposition scheduled, by prior agreement
between the parties, for December 13, 2006. Subsequently, on or about November 20, 2006,
Craig Dyer (“Dyer”) filed Plaintiff's Motion to Quash Deposition of Mitchell Madden or in the
Alternative, Motion for Protective Order. As the basis for his motion to quash, Dyer argues that
the Subpoena sceks to avoid the Court’s earlier ruling on Defendants’ Motion to Quash, that all
relevant facts sought by the deposition are protected by the attorncy-client privilege, and that
these facts can be discovered by less intrusive means. Defendants disputed Dyer’s allegations,
however, in an effort to resolve the dispute and proceed with the deposition, Defendants agreed
to limit the scope of the Subpoena. [See counsel for Defendants’ correspondence of November
28, 2006, attached hereto as Exhibit “G” and incorporated by reference]. Dyer still refused to
withdraw his Motion to Quash. Therefore, Defendants must seek this Motion to Compel the
Deposition of Mitchell Madden.

1.04 The Court should be aware that Defendants made an additional attempt to secure
Madden's deposition prior to involving the Court in this dispute. Defendants issued a Notice to
Take the Oral Deposition of Mitchell Madden on March 21, 2007. Subsequently, on March 26,
2007, Dyer once again filed a motion to quash asserting the same grounds as those set forth in

his motion of November 20, 2006.

 

DEFENDANTS’ MOTION TO COMPEL THE DEPOSITION OF MITCHELL MADDEN, Page 3 of 9Il.
ARGUMENTS AND AUTHORITY

2.01 Defendants cannot obtain the discovery of the information sought through
less intrusive means. Dyer alleges that Defendants must establish that they cannot discover the
information sought through less intrusive means before they are entitled to depose Madden.
Defendants seck information regarding Madden's conversations with Dyer concerning their joint
venture into the appliance installation business, prior to Madden’s representation of Dyer in this
case. The only two parties to those conversations are Dyer and Madden. It would be unjust for
Defendants to have to rely solely on Dyer’s testimony as evidence of such conversations. If
Defendants are not given the opportunity to depose Madden regarding these conversations,
Defendants will have no means of impeaching Dyer’s testimony. The issue of how and why a
check signed by Mitchell Madden was made out to Craig Dyer and not DCI, even though Craig
Dyer was an employee of DCI and utilizing DCI’s tools and materials, must be explained. In
addition, Defendants should not be limited to discovering these pertinent facts through Dyer - -
an untrustworthy person. In fact, many of Defendants’ claims arise from Dyer’s fraudulent acts,
misrepresentations, and the breach of his fiduciary duties. Defendants are entitled to alternative
sources for the information they seck, and Madden was the only other party to the acts
surrounding payment for Madden’s appliance installation at his house and the conversations
involving same. Moreover, Madden is a member of the Texas Bar and an officer of the Court;
his testimony is far less impeachable.

2.02 Furthermore, Defendants sought the discovery of the information they seek
through their requests for production to Dyer. However, Dyer objected to such requests as being

overly broad and secking documents that were in Madden’s possession, not his own. The Court

 

DEFENDANTS’ MOTION TO COMPEL THE DEPOSITION OF MITCHELL MADDEN Page 4 of §sustained Dyer’s objection in part and ordered him to produce such documents that were in his
possession, not those in Madden’s possession. A true and correct copy of the Court’s Order is
attached as Exhibit “H” and incorporated by reference. Dyers objection to Defendants’
discovery requests has made it necessary to seek such documents from Madden. In a similar
case, the Corpus Christi Court of Appeals allowed the deposition of the plaintiff's attomey when
the plaintiff specifically stated in her deposition that the attorney would be the person with
knowledge of the information sought. In re Mason & Co. Property Management, 172 S.W.3d
308 (Tex. App. — Corpus Christi 2005, no pet.). This case is similar because Dyer has avoided
the discovery of some of the information sought by his objection to Defendants’ requests for
production on the basis that the requests required him to produce documents that were in
Madden’s possession. [See Order, Ex. H]. As such, Defendants have no other choice but to seck

such information direct from Madden.

2.03 Alternatively, Defendants are not required to seek the discovery of this
information through less intrusive means. There is a line of cases that address the “less

intrusive means” requirement in conjunction with the deposition of a counsel of record. See In
re Burroughs, 203 S.W.3d 858, (Tex. App. - Beaumont 2006, no pet. hist.); See also In re
Baptist Hospitals of Southeast Texas, 172 $.W.3d 136 (Tex. App. — Beaumont 2005, no pet.).
However, these cases cach address the instance where the partics secking the attommeys’
depositions were admittedly attempting to discover attorney work product. See id. Specifically,
the partics were seeking the discovery of facts the attorney learned during the course of his
Tepresentation of an opposing party. See id As such, the court in Burroughs and Baptist
Hospital had to apply the guidelines set forth in TEXAS RULE OF CIVIL PROCEDURE 192.5(b) to

determine whether the partics’ seeking the depositions had established their entitlement to the

 

DEFENDANTS’ MOTION TO COMPEL THE DEPOSITION OF MITCHELL MADDEN Page 5 of 9discovery of attorney work product. See id. Here, Defendants are not seeking the discovery of
attorney work product. Defendants are secking the discovery of facts related to Madden’s
business dealings with Dyer separate and apart from Madden’s role as an attorney; Defendants
are not seeking the revelation of Madden’s mental impressions, opinions, conclusions, or legal
theories that he has formed in the process of representing Dyer in this action or in anticipation of
this action. Therefore, Dyer’s motion to quash should be denied, and Madden should be
compelled to attend his deposition and give testimony.

2.04 Defendants are entitled to take the deposition of Madden. The fact that a
person with knowledge of relevant facts happens to be representing a party in the underlying
case does not prevent the taking of his deposition. Smith, Wright & Weed, P.C. v. Stone, 818
S.W.2d 926, 928 (Tex. App. — Houston a" Dist.] 1991, no writ). Dyer argues that Madden’s
deposition should be quashed on the basis that any information sought by Defendants during the
deposition would be protected by the attorney-client privilege. However, “a deposition may not
be quashed in its entirety on grounds that some of the matters to be explored may be privileged.
In short, an attorney may be deposed, even if he or she represents a party to the litigation in
issue.” In re Mason & Co. Property Management, 172 S.W.3d 308, 313 (Tex. App. — Corpus
Christi 2005, no pet.). “The mere possibility that a deponent will assert a privilege against
answering a specific deposition question does not justify the quashing of a deposition notice.”
id. “The attorney-client privilege was never intended to foreclose any opportunity to depose an
attomey, but rather only precludes those questions which may somehow invade upon the
attorney-client confidences. An attorney may not avoid a deposition in its entirety merely
because some matters may be privileged, but must object when those inquiries are raised during

the deposition.” Borden, Inc. v. Valdez, 773 S.W.2d 718, 720 (Tex. App. — Corpus Christi 1989,

 

DEFENDANTS’ MOTION TO COMPEL THE DEPOSITION OF MITCHELL MADDEN Page 6 of 9no writ). Defendants seek information from Madden relating to Madden’s business dealings
with Dyer that occurred while Dyer was still associated with Defendants’ business and before
Madden began representing Dyer as his attorney. “The [attorney-client] privilege does not apply
if the attorney is acting in a capacity other than that of an attomey.” Jn re Texas Farmers
Insurance Exchange, 990 S.W.2d 337, 340 (Tex. App. - Texarkana 1999, mandamus denied).
Defendants seek discovery of information Madden obtained when he was not acting in his
capacity as an attorney. As such, the Subpoena cannot be quashed on the basis of attorney-client
privilege, and, accordingly, Madden should be compelled to attend his deposition and give

testimony.

2.05 The production of documents sought by the Subpoena does not contravene
the Court’s Order of August 11, 2006, regarding Defendants’ Request for Production to

Dyer. Dyer argues in his motion that “the Court has previously limited the information that the
Defendants are entitled to obtain about Dyer Mechanical Services, LLC.” [Plaintiffs Motion to
Quash, pg. 2, para. 2). The Court’s Order of August 11, 2006, OVERRULED Dyer’s objections
to Defendants’ requests for production seeking information regarding Dyer Mechanical Services,
LLC. [Order, Ex. H, pg. 2, para. 4]. The Court’s Order in this regard only limited the discovery
to a particular period of time and then only to those documents in Dyer’s possession. [See Order,
Ex. H, pg. 2, para. 4]. By the Subpoena, Defendants seek documents regarding Dyer
Mechanical Services, LLC that are in the possession of Madden, not Dyer. Furthermore, though
the Court’s Order only applies to those documents sought from Dyer, as the Order makes very
clear, the Subpoena docs not seek the production of documents that were created beyond the

bounds of the time period dictated in the Court’s Order. [See Ex. F and Ex. H]. As such, Dyer’s

 

DEFENDANTS’ MOTION TO COMPEL THE DEPOSITION OF MITCHELL MADDEN. Page 7 of 9allegation that the Subpoena seeks to “evade” the Court’s Order is blatantly false, and Madden
should be compelled to produce all responsive documents at the time of his deposition.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendants respectfully request that the
Court set this motion for hearing and that upon hearing this motion, the Court enter an order
compelling Mitchell Madden to attend his deposition. Defendants further request all such other
and further relief, both general and specific, at law and at equity, to which they may be justly

entitled.

Respectfully submitted,
NOWAK & STAUCH,

 
   

By:

   

jatthew A. Nowak
State Bar No. 00794382
Thomas R. Stauch

State Bar No. 00794687
Jacob D. Thomas

State Bar No. 24042028

4144 N. Central Expressway
Suite 300

Dallas, Texas 75204

(214) 823-2006 - telephone
(214) 823-2007 - facsimile

ATTORNEYS FOR DEFENDANTS

 

 

TS’ MOTION TO COMPEL. THE DEPOSITION OF MITCIEELL MADDEN Page 8 of 9CERTIFICATE OF CONFERENCE
Counsel for movant and counsel for respondent have personally conducted a conference
at which there was a substantive discussion of every item presented to the Court in this motion

and despite best efforts the counsel have not been able to resolve those matters presented.

L)

cob D. Thomas

Certified to the I shay of April, 2007.

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document was served in
accordance with TEXAS RULES OF CIVIL PROCEDURE 21 and 21a on all parties to this case

via facsimile and certified mail, retum receipt requested on this the 1a day of April 2007.

 

i
FIAT

A hearing on this motion is scheduled for __: a.m./p.m., on the day of
, 2007, in the above-referenced court.

Signed this day of , 2007.

 

JUDGE PRESIDING

 

DEFENDANTS’ MOTION TO COMPEL THE DEPC

 

JON OF MITCHELL MADDEN Page 9 of 3EXHIBIT

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_ Ted WLOL
DCI. Inc. Invoice-
496 E. Purnell St. oreere
Lewisville, TX 75057 rer
(469) 293-0020 117472003 79601694

Bill To Ship To
Madden
6218 Raintree Ct.
Dallas, Ts.
7Z- GIO BITS G7e- 484-774 3
Mapsco P.O. Number Install Date OC! Rep TGI Contact Store
114422005 cD
Quantity Description item Code Price Each Retall Amount
Duilt in oven and cabinet modificstians 500-100 225.00 2258.00
microwave 900-100 75.00 75.00
warming drawer 900-190 75.00 73.00
conktop 900-100 100,00 100.00
downdraft 900-100, 125,00 125.00
fee raschine 900-100 100,00 100.00
Trash compactor 900-100 73.00 75.00
dishwasher w/ waterline 900-100 65.00 65.00
duct work for downdraft and rerouting gas lines | 900-100 f 250.00 250.00
vw Biltings and shuralf
Sink insta)! includes al) plumbing work, faucet, [900-1 it 350.00 350,00
garbuge disposer, and supply lines
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i have inspected and accept the materials and installation X. ON FILE
Balance Due $1,540.00

 

 

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Quantity Description item Code Prive Each Retail Amount

‘bull in oven end cabinet modifications 900-100 225.00 25.00
ficrrwave 900-160 75.00 73.00
warmiag drswer 900-100 73.00 3.
conktop 900-100 100,00
stowndraft 920-100 125.00
ice machine 00-100 100,00
trach compactor PDO} D0 75.00
Gchwasher w/ waterine 900-160 165.00.
duct work fr downutoft and rereuting gis ines | 00-100 YY 280.00
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sink in includes ofl phonbing work, faucer, | 900-11 350.00
gartage disposer, and supply lines:

 

 
 
 
 
 
 
  

 

 

 

 

 

 

 

 

 

 

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EXHIBIT

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MINUTES OF THE MEETING
OF THE BOARD OF DIRECTORS

¥

A meeting of the Board of Directors of the Corporation was held via phone on the
5* day of December 2003 at 8:09 pun.

The meeting was a special meeting. The Secretary was directed to prepare a
written walver of notice, consent to meeting and approval of the minutes to be signed by
all Directors and to file the same with these minutes.

The undersigned Directors of the Corporation, being a quorum of the Directors of
the Corporation, were present and participated throughout the meeting.

N. Joseph Geeting acted as Chairman of the meeting.
Susan Lambert acted as the Secretary of the meeting.

The mecting adopted the resolutions shown below, including any resolutions
shown on the additional pages attached hereto, Each resolution was passed by the
Directors shown, and any Directors dissenting to any resolution did so for the reasons
stated therein.

ui « Aresolution was passed to remove Craig G. Dyer as President of the

‘ Corporation. This was approved by Joseph Geeting, Richard C.

: Geeting, and Lauri A. Geeting. Larry Dyer and Susan Lambert
abstained from voting. Craig G. Dyer opposed the resolution.

The fallawing persons were nominated end duly elected to the offices set beside
their respective names to sérve until their respective successors are chosen and qualified:
President: Larry G, Dyer - approved 300% by Directors

All other offices arc to remain filled pursuant to the elections held at the previous
Directors’ meeting.

Number of additional! pages attached: 1

 

MINUTES OF THE BOARD OF DIRECTORS’ MEETING, PAGE 1

—— SAGO 91:91 beae-se-eas

. bee _. SITOREE2ESbT OL a ELLE SS
“pc 1000000245FEB-20-2084 15:27 : DCI inc - 469 2593 8216 P.@3

MINUTES OF THE MEETING
OF THE BOARD OF DIRECTORS

A meeting of the Board of Directors of the Corporation was held via phone on the
9" day of December 2003 at 8:09 p.m.

The meeting was a special meeting. The Secretary was directed to prepare &
written waiver of notice, consent to meeting and approval of the minutes to be signed by
all Directors and to file the same with these minutes.

The undersigned Directors of the Corporation, being a quorum of the Directors of
the Corporation, were present and participated throughout the meeting.

N. Joseph Geeting acted as Chairman of the meeting,
Susan Lambert acted as the Secretary of the meeting.

The meeting adopted the resolutions shown below, including any resolutions
shown on the additional pages attached hereto. Each resolution was passed by the
Directors shown, and any Directors dissenting to any resolution did so for the reasons
Stated therein.

* A resolution was passed to remove Craig G. Dyer as President of the
Corporation. This was approved by Joseph Geeting, Richard C.
Geeting, and Lauri A. Geeting, Larry Dyer and Susan Lambert
abstained from voting. Craig G. Dyer opposed the resolution.

The following persons were nominated and duly elected to the offices set beside
their respective names to serve until their respective successors are chosen and qualified:

President: Larry G. Dyer — approved 100% by Directors

All other offices are to remain filled pursuant to the elections held at the previous
Directors’ meeting.

Number of additional pages attached: 1

 

MINUTES OF THE BOARD OF DIRECTORS’ MEETING, PAGE 1.

DC 1000000246FEB-26-2884 15:27 ®@ INC e@ 469 293 8216 P.84

There being no further business before the meeting, on motion duly made,
seconded and carried, the meeting was adjourned.

Dated: December 9, 2003

Chief Henne Officer Director

President Director
OAC
Secretary | Director
Corporate
Seal
: The following documents have been *
Appended to these minutes:

 

MINUTES OF THE BOARD OF DIRECTORS’ MEETING, PAGE 2

0C 1000000247There being no further business before the meeting, on motion duly made,
seconded and carried, the meeting was adjourned.

Dated: December 9, 2003
Ve a a ki | Ala.
Chief Executive Officer Directo, 7 W
. A .
Le N ui Attire,
Presid iregtor U
Secretary E Director

Corporate
Seal

 

 

 

 

 

 

 

 

The following documents have been
Appended to these minutes:

 

MINUTES OF THE BOARD OF DIRECTORS’ MEETING. PAGE2 0C1000000248eranews ase
soca fae miaenoi ALES EXHIBIT

Au

December 10, 2003

Dyer Custom Installation, Inc.
3300 Long Prairia Rd., Ste 300
Flewer Mound, Texas 75022

Re: Resignation as Director af Dyor Custom Installation, Inc.

To: Neal Jaseph Geeting cEO
and the Board of Directors

tffective Immediately, | am resigning as a director and registered agent of Dyer Custom
Installation, Inc.

 
 

nee pcolooaane244e@ @ ; EXHIBIT

THE Law OFFICES OF ~E
MITCHELL MADDEN
1800 VALLEY VIEW LANE
SUITE 150
DALLAS, TEXAS 75234
MITCHELL MADDEN, J.0., CPA (972) 484-7780
MEMBER: TEXAS AND IDAHO BARS. (972) 484-7743 FAX
mmadden @ sbcpopai.net

BOARD CERTIFIED ADUMUSTAATIVE LAM
TEXAS BOARD OF LEGAL SPECIALIZATION

January 6, 2004

PRIVILEGE AND CONFIDENTIAL
ATTORNEY-CLIENT COMMUNICATION

Craig Dyer Via Hand Delivery

5210 Long Prairie # 1221
Flower Mound, Texas 75028

RE: Dyer Custom Installations, Inc

Dear Dr. Craig

The purpose of this letter is to set forth our agreement regarding representation with
respect to your interest in the above reference matter. As is more fully set forth in the
transmittal letter hereof, we previously commenced work on this matter over the Christmas
Holiday. Additionally, | have agreed not to request a retainer and to work with you on the
payment and or exchanges services of equal value equal to billing made pursuant to this

agreement.

We will endeavor to bring this matter to a prompt conclusion by way of court disposition or

@ negotiated settlement as desired. However, you should be aware that negotiations and _
htigation can often times run at their own pace, due to factors beyond the control of the

parties or their attorneys. in tact, emotions and impressions can play a vital roll in any
contested matter, and can contribute to uncertain results in any negotiation or litigation.

Attorney Fees:

The firm sets its fees in accordance with the factors set forth in the Texas Code of
Professional Responsibility, which factors include:

a. The novelty and difficulty of the questions involved, and the skill requisite to
performing the legal service properly;

b. The likelihood that the acceptance of the particular employment will preclude
other employment by the Firm;

c. The fee customarily charged in the locality for similar legal services;

Dyer00783Craig Dyer
January 6, 2004
Page 2

d. The amount involved and the results obtained;
e. The nature and length of the professional relationship with Client; and

f. The experience, reputation and ability of the Firm.

The captioned matter will be principally handled by Mitchel! Madden whose standard hourly
rate for the calendar year 2004 for this type of matter is $225.00 per hour.

These hourly rates are adjusted by the firm from time to time, usually year-end but
occasionally at other times, as we deem appropriate. We will advise you of changes in

hourly rates with 30 days’ prior written notice.

It is agreed that the recording of time by the firm shall apply to all time incurred on tasks
necessary to adequately handle the matter including but not limited to: to drafting of
documents, conferences, telephone conversations, investigation of facts, legal research,
drafting of correspondence, review of correspondence, and other aspects necessary to

adequately handle the matter.

Client understands that during the pendency of this matter and the Attorney/Ctient
relationship, the Firm may deem it necessary to use the services of legal assistants,
paralegal employees or other associate lawyers of the Firm, and you agree that the use
of such is acceptable to you with the understanding that ail work performed by assistants
selected by the Firm shall be supervised by the supervising attorney.

lf ii is necessary io employ ouiside professionals such as other counsel, accuuntaiits,
experts, or appraisers, the Firm will obtain your prior approval. Unless other arrangements
are made between the Firm and the Client, the Client shall be responsible for making all
necessary fee arrangements directly with such professionals.

Costs and Out-of-Pocket Expenses

Often it is necessary for law firms to incur expenses for iterns such as travel, messengers,
telephone charges, duplicating costs, overtime expenses, deposition transcripts, court
costs, filing fees, and other similar costs and expenses, all of which are not part of the
lawyer's compensation. It is agreed that we will have the authority to contract for services,
as your agent, of any person, firm or organization that we deem appropriate for the proper
conduct of this lawsuit, and that the charges for the services rendered will be paid by you.
You authorize us to incur and pay various out-of-pocket expenses reasonably necessary
for us to effectively represent you. These charges may be made by courts, government
agencies, and third-party vendors, such as airlines, hotels, messenger services, express

Dyer00784Craig Dyer
January 6, 2004
Page 3

delivery services, expert witnesses, and the like. We will itemize costs in the fee
statements. We do not add surcharges or other fees to these third-party charges. It is our
practice, when possible, to have third parties bill you directly for their services if we deem

it appropriate to do so.

Certain costs are incurred internally. We will seek reimbursement from you at the following
rates, which may exceed our precise actual cost. We charge .20 cents per page for
photocopies; $ 1.50 per page to send a long distance facsimile; $1.25 per page to send a
local facsimile; and we bill computer aided legal research services at a rate ($ 2:00 per
connect time minute) that covers not only our precise “connect time’ cost, but also various
other costs, such as subscription charges, taxes and personal costs. In this regard, we will
forward to you a statement or invoice rendered for such service(s) and expenses on a

monthly basis, and you agree to pay the same forthwith.

Scope of Representation

Itis agreed that you are retaining the Firm to act as counsel solely in the matters described
in the caption at the beginning of this letter and no other. Attorney shall not be obligated
to perform other services except under an independent contract and independent fee
agreement, should Client and Attorney decide to contract with each other for such services.

Additionally, the Firm understands that you are not looking to us for any services other than
the handling of the present matter. If you do ask us to provide other services, this
agreement will govern unless another written agreement is executed.

Termination uf Representation

You may terminate our right to represent you at any time, with our without any reason for
doing so, upon reasonable notices. With your consent, we have the right to withdraw from
representing you at any time. We have the right to withdraw without your consent: (1)
provided that we can withdraw without material adverse effect on your interest, or (2) if it
becomes legally or ethically proper or necessary for us to do so under the Texas Rules or
other Texas law. Among other things, the Texas Rules permit us to withdraw for failure to

prompily pay our fee.

if you discharge us or if we decide to withdraw, you agree to take those steps reasonably
necessary to free us from the obligation to represent you further, including filing any
motions necessary to complete the termination. We will take all steps reasonable

necessary to protect your interests.

DyerG0785Craig Dyer
January 6, 2004
Page 4

For purposes of conflicts of interest, the attorney-client relationship will be considered
terminated 30 days after mailing our final statement to you.

You shall at all times have the right to terminate our services upon written notice to that
effect. We shall at all times have the right to terminate our services upon written notice to
that effect in the event that you either fail to cooperate with us in any reasonable request,
to timely remit retainers, to timely pay the statements in full as submitted, or if we
determine in our reasonable discretion that to continue our services to you would be
unethical or impractical. Clients further agree and consent to the withdrawal of the Firm
as counsel in the event of nonpayment or other breach of this agreement. If our services
are terminated, it is agreed that all expenses, including the fees and expenses of outside
professionals are due and payable by you, unless a separate written agreement is
executed.

During the representation you will likely provide us with various documents. We will
assume that you have copies of such documents, and will treat all documents we receive
as copies of original unless you advise us otherwise. At the end conclusion of the
representation if you would like us to return any or all documents to, please notify us in
writing at that time. We will do so promptly once fees are settled. Any documents
remaining in our possession will ultimately be destroyed in accordance with our document
retention policy then in effect.

Due to storage fees and limitations, the firm has implemented a file retention policy. This
policy provides that hard copy files generated by the firm will be maintained by the firm for
a period of five years after the closing of an active file upon conclusion of representation
on that matter. The Client wil! be-notified of the fiin's closiiy.of afic aide: eby consents
to the physical destruction of such file anytime after the fifth anniversary of the conclusion
of representation.

 

Arbitration of Disputes

IN THE EVENT OF A DISPUTE BETWEEN US CONCERNING ANY OBLIGATIONS OR
RIGHTS ARISING OUT OF THIS AGREEMENT OR ARISING OUT OF THE FIRM'S
REPRESENTATION OR ACTIONS IN THE ABOVE-REFERENCED MATTER, THE
MATTER SHALL BE REFERRED TO BINDING ARBITRATION TO THE PRESIDENT OF
THE STATE BAR OF TEXAS AT THE TIME OF THE DISPUTE, OR SUCH PERSON(S)
HE DESIGNATES.

Oyer00786Craig Dyer
January 6, 2004
Page 5

Your signature below evidences your authority to execute this agreement and agreement
to the terms ofthis letter. If you understand the foregoing and agree with the terms, please
sign the original of this letter and return it to me. If you do not understand or do not agree

with the terms, do not sign.

Once again, thank you for the opportunity to work with you on this matter.

Very sincerely yours,

 

THE LAW OFFIGES OF MITCHELL MADDEN
By: ll 10 | of
/ Mitchell Madden Date |

AGREED AND APPROVED:

CA \eel OF

Date

 

Dyer00787@ e EXHIBIT

Poe

CAUSE NO. 04-01100-M

CRAIG DYER, § INTHE DISTRICT COURT
§
Plaintiff, §
§
vs. §
§ 298™ JUDICIAL DISTRICT
DYER CUSTOM INSTALLATION, INC. §
(DCN, JOSEPH GEETING, §
SUSAN LAMBERT, RICHARD GEETING §
and LAURI GEETING, §
§
Defendants. § DALLAS COUNTY, TEXAS
THE STATE OF TEXAS

SUBPOENA DUCES TECUM

To: Mitchell Madden, Esq., Law Offices of Mitchell Madden, 1800 Valley View
Lane, Suite 120, Dallas, Texas 75234.

Greetings:

YOU ARE COMMANDED TO appear December 13, 2006, at 9:30 am. at the offices
of Mr. Kenneth F. Nye, Bennett, Weston & LaJone, P.C., 1750 Valley View Lane, Suite 120,
Dallas, Texas 75234, produce the documents described in attached Exhibit “A,” and give

testimony at a deposition in the case of Craig Dyer v. Dyer Custom Installation, Inc., et al.,
cause no. 04-01100-M, currently pending before the 298" Judicial District Court, Dallas County,
Texas. You must remain at the place of the deposition from day to day until discharged by the
party summoning the witness.

FAILURE TO OBEY THIS SUBPOENA MAY BE TREATED AS A CONTEMPT
OF COURT. TEXAS RULE OF CIVIL PROCEDURE 176.8(a) PROVIDES AS
FOLLOWS: Failure by any person without adequate excuse to obey a subpoena served
upon that person may be deemed a contempt of the court from which the subpoena is
issued or a district court in the county in which the subpoena is served, and may be
punished by fine or confinement, or both.

This subpoena is issued at the request of Dyer Custom Installation, Inc. and Joseph

Geeting, whose attorney of record is Matthew A Nowak.

THE STATE OF TEXAS SUBPOENA DUCES TECUM OF MITCHELL MADDEN Page 1 of SDate of Issuance: November is > 2006.

SUBPOENA ISSUED BY:

OLE

b D. Thomas,
lomey licensed to practice in Texas

CERTIFICATE OF SERVICE

 

I hereby certify that a true and correct copy of the foregoing document was served in
accordance with TEXAS RULES OF CIVIL PROCEDURE 21 and 21a on all parties to this case

via facsimile and certified mail, return receipt requested on this the IStaay of November 2006.

J D. Thomas

MEMORANDUM OF ACCEPTANCE

 

l accepted service of a copy of this subpoena on day of , 2006.

 

Mitchell Madden

RETURN OF SUBPOENA

 

I certify that I served the attached subpoena by delivering a copy and the required fee of
$10.00 to Mitchell Madden in person, at 1800 Valley View Lane, Suite 120, Dallas, Texas 75234

 

 

on August : 2006 at: am./p.m. My fee for this service has been paid in
advance.

[printed name]

[title]

 

 

THE STATE OF TEXAS SUBPOENA DUCES TECUM OF MITCHELL MADDEN ~ Page 2o0f5“EXHIBIT A”
DEFINITIONS
a) “You" and “your" refers to Mitchell Madden.

b) "Plaintiff" refers to Craig Dyer.
c) “DCI” refers to defendant Dyer Custom Installation, Inc.

d) As used herein, "document" and "documents" shal] mean any document, thing, or other
tangible medium of storage, including, but not limited to, writings, printed material,
photographs, videotapes, computer data, in its native format, and audio recordings of
every kind, in Your possession, custody, or control, or known by You to exist,
irrespective of whether the document is one intended for or transmitted internally by You,
or intended for or transmitted to any other person or entity, including without limitation
any government agency, department, administrative entity, or personnel. It shall include
communications in words, symbols, pictures, sound recordings, films, tapes, and
information stored in, or accessible through, computer or other information storage or
retrieval systems, together with the codes and/or programming instructions and other
materials necessary to understand and use such systems. For purposes of illustration and
not limitation, the terms shall include: correspondence; transcripts of testimony; letters;
notes; reports; papers; files; books; records; contracts; agreements; telegrams; teletypes
and other communications sent or received; diaries; calendars; Jogs, notes, or memoranda
of telephonic or face-to-face conversations; drafts; workpapers; agendas; bulletins;
notices; circulars; announcements; instructions; schedules; minutes, summaries, notes,
and other records and recordings of any conferences, meetings, visits, statements, and
other records, obligations and expenditures; canceled checks, vouchers, receipts, and
other records of payment; ledgers; journals, balance sheets, profit and joss statements,
and other sources of financial data; analyses; statements; interviews; affidavits; printed
matter (including published books, articles, speeches, and newspaper clippings); press
releases; charts; drawings; specifications; manuals; brochures; parts lists; memoranda of
all kind to and from any persons, agencies, or entities; technical and engineering reports,
evaluations, advice, recommendations, commentaries, conclusions, studies, test plans,
manuals, procedures, data, reports, results and conclusions; records of administrative,
technical and financial actions, taken or recommended; title documents, such as deeds,
leases, assignments, and liens, and all other writings the contents of which relate to,
discuss, consider, or otherwise refer to the subject matter of the particular discovery

requested.

"Person" and “persons” shall include natural persons, firms, parmerships, associations,
joint ventures, and corporations.

e)

 

THE STATE OF TEXAS SUBPOENA DUCES TECUM OF MITCHELL MADDEN “Page 3 of §(1)

(2)

(3)

(4)

6)

(6)

INSTRUCTIONS

Copying: The requesting party agrees to payment of reasonable costs for reproduction or
copying as provided by the Texas Rules of Civil Procedure.

Extensions of Time: Any agreement for extension of time to respond to these Requests
for Production must be in writing.

Lost or Destroyed Documents: If any requested document has been lost or destroyed,
for each such document state the circumstances relating to the loss or destruction of such

document, the approximate date of the Joss or destruction and a reasonably complete
description of the contents of such document.

Identify: In those instances where the word “identity,” is used in these requests for
discovery, it should be interpreted as requiring with respect to individuals, the person's
name, last known address and telephone number. With respect to documents or things, it
should be interpreted requiring sufficient information regarding the item so that the party
seeking discovery can locate and identify the object as readily as the party from whom it

is being sought.

Computer Based Information: In those instances where requested information is stored
only on software or other data compilations, the responding party should either produce

the raw data along with all codes and programs for translating it into usable form or
produce the information in a finished usable form, which would include all necessary

glossaries, keys and indices for interpretation of the material.

Document Destruction: It is requested that all documents and/or other data
compilations which might impact on the subject matter of this litigation be preserved and
that any ongoing process of document destruction involving such documents cease

immediately.

DOCUMENTS AND THINGS REQUESTED

Any and all documents evidencing or relating to all agreements between You and
Plaintiff.

A copy of all agreements between You and Plaintiff regarding the funding and/or
formation of Dyer Mechanical Services, LLC.

A copy of any document evidencing an agreement between You and Plaintiff regarding
the funding and/or formation of Dyer Mechanical Services, LLC.

All correspondence between You and Plaintiff concerning the funding and/or formation
of Dyer Mechanical Services, LLC.

All correspondence between You and Plaintiff regarding DCI.

 

THE STATE OF TEXAS SUBPOENA DUCES TECUM OF MITCHELL MADDEN

"Page 4 of 510.

He

12.

14.

15.

16.

19.

All correspondence between You and Plaintiff regarding the business of appliance
installation from September 2003 through July 2004.

All correspondence between You and Plaintiff regarding customers of DCI.
All correspondence between You and Plaintiff regarding employees of DCI.

All correspondence between You and Plaintiff regarding work to be performed by
Plaintiff on Your residence located at 6218 Raintree Court, Dallas, Texas.

All correspondence between You and any person not a party to this lawsuit regarding
DCI, Plaintiff, the appliance installation business, or DCI’s customers.

All documents relating to the work performed by Plaintiff on Your residence located at
6218 Raintree Court, Dallas, Texas.

Copies of all checks written by You to Plaintiff berween September 2003 through July
2004.

All documents evidencing receipts for payments made by You to Plaintiff between
September 2003 through July 2004.

All documents evidencing loans made by You, or by a company for which you are an
officer or director, to Plaintiff or a company for which Plaintiff is an officer or director.

All documents evidencing proposals made by Plaintiff to You proposing the start of a
business that provides appliance installation services.

A copy of any fee agreement between You and Plaintiff.

A copy of any documents evidencing or referencing the formation of Dyer Mechanical
Services, LLC.

All documents evidencing notes, diaries, or calendars regarding conversations with
Plaintiff that concerned starting a business offering appliance installation services.

All documents evidencing notes, diaries, or calendars regarding conversations with
Plaintiff that concerned the formation of Dyer Mechanical Services, LLC.

 

THE STATE OF TEXAS SUBPOENA DUCES TECUM OF MITCHELL MADDEN

Page 5 of 5Nek

 

 

 

seeeenens

DOLLARS fA &

| Pro DAYS
= MEMO Witness Fee: Depo Date 12/13/2006 oo

“OOS&8ar

 

TEETER TB

 

 

 

 

 

bbbdaeaeg

 

"3030 0059 owe NOWAK & STAUCH }
AS _G

A Limited Liability Partnership

4144 N. CenTRaL Expressway, Suite 300
DALLas, Texas 75204
214-823-2006 MAIN
Jacos D. THOMAS 214-823-2007 FACSIMILE
themas@os-lae net wwrw.ns-lawenet

November 28, 2006

VIA E-MAIL, FACSIMILE, AND
G IS MAIL

Mr. Kenneth F. Nye

BENNETT, WESTON & LaJone, P.C.
1750 Valley View Lane, Ste. 120
Dallas, Texas 75234

Re: Craig Dyer v. Dyer Custom Installation, Inc. (DCI) et al; Cause No. 04-
01100-M; In the 298" Judicial District Court of Dallas County, Texas;
Our File No. 0679.002

Dear Ken:

Thank you with speaking with Matt Nowak and me via teleconference earlier
today. Per our conversation, | am writing to follow up on a number of issues we

discussed in the hopes of resolving some of the ongoing discovery disputes between the
parties.

The first issue is that of Mitchell Madden’s deposition. You have asked that we
identify the topics on which Mitchell Madden will be deposed and limit the scope of the
documents requested. In response, Dyer Custom Installation, Inc. (“DCI”*) and Joseph
Geeting (collectively, “Defendants”) agree to limit the scope of Mitchell Madden’s
deposition to the following topics:

1) the work performed by Craig Dyer on Mitchell Madden’s residence prior to
January 10, 2004; and

2) discussions between Craig Dyer and Mitchell Madden concerning a joint
business venture prior to January 10, 2004.

In addition, Defendants agree to limit the documents requested in their Subpoena
Duces Tecum to Mitchell Madden to the following requests:

1) All correspondence between Mitchell Madden and Craig Dyer prior to
January 10, 2004, regarding the business of appliance installation.

2) All correspondence between Mitchell Madden and Craig Dyer prior to
January 10, 2004, regarding DCI’s customers.Nowak & STAUCH, LLP

Mr. Kenneth F. Nye
BENNETT, WESTON & LAJONE, P.C.
November 28, 2006

Page 2

3)

4)

5)

6)

0)

8)

9)

All correspondence between Mitchell Madden and Craig Dyer prior to
January 10, 2004, regarding DCI’s employees.

All correspondence between Mitchell Madden and Craig Dyer regarding work
on Mitchell Madden’s residence located at 6218 Raintree Court, Dallas, Texas
that occurred prior to January 10, 2004.

All correspondence between Mitchell Madden and any person not a party to
this lawsuit regarding DCI, Craig Dyer, the appliance installation business, or
DCI’s customers.

All documents relating to the work performed by Craig Dyer on Mitchell
Madden’s residence located at 6218 Raintree Court, Dallas, Texas.

Copies of all checks written by Mitchell Madden to Craig Dyer for debts
incurred prior to January 10, 2004.

All documents evidencing receipts for payments made by Mitchell Madden to
Craig Dyer for debts incurred prior to January 10, 2004.

All documents evidencing loans made by Mitchell Madden, or by a company
for which he is an officer or director, to Craig Dyer prior to January 10, 2004.

10) All documents evidencing proposals made by Craig Dyer to Mitchell Madden

prior to January 10, 2004, regarding the start of a business that provides
appliance installation services.

11) All documents evidencing notes, diaries, or calendars regarding conversations

between Mitchell Madden and Craig Dyer concerning starting a business
offering appliance installation services prior to January 10, 2004.

Please be aware that January 10, 2004, is the date on which Mitchell Madden executed
the representation agreement whereby he agreed to represent Craig Dyer, and is prior to
DCI’s termination of Craig Dyer’s employment and contractual relationships with DCI.

Per our earlier conversation, I want to assure you that we have produced all non-
privileged documents responsive to Craig Dyer’s requests for production that are
currently in our possession. The only documents being withheld are those that fall under
the attorney-client privilege or the attorney work product privilege. Of course, we will
fulfill our obligation to supplement the production of documents as to all defendants as
additional documents are located or identified.Nowak & STAUCH, LLP

Mr. Kenneth F. Nye

BENNETT, WESTON & LAJONE, P.C.
November 28, 2006

Page 3

In response to your inquiry regarding the Inventory Appraisements exchanged
between Joe and Lauri Geeting in conjunction with their divorce proceedings, there does
not exist an Inventory Appraisement that reflects a valuation of DCI or of DCI stock.

Per our conversation, you have agreed to contact Ellen Grossman and secure
every document contained in her files concerning Craig Dyer’s tax returns for 2002,
2003, 2004, and 2005, and produce same. Such documents should include all income tax
return schedules and worksheets, all W-2s and 1099s, and all related workpapers.

Additionally, you have agreed to inform us by close of business on Friday,
December 1, 2006, as to whether Craig Dyer will be produced for his deposition
scheduled for December 12, 2006, and whether Mitchell Madden will be produced for his
deposition scheduled for December 13, 2006. If Mr. Dyer and Mr. Madden agree to
attend their depositions as scheduled, I would like to have an executed Rule 1]
Agreement to that effect by the close of business on Friday, December 1, 2006. If not,
please be aware that we will promptly file an Emergency Motion to Compel and will
have it set for hearing during the week of December 4, 2006.

It is my understanding that you will be sending me a letter regarding the balance
of what we discussed during our teleconference earlier today. I will respond accordingly
upon receipt of same. In the meantime, if ] have misstated those things you have agreed
to do, or if you have any issue with what we have agreed to do, please contact me

immediately.
Sincerely, LI

‘ob D. Thomas

[look forward to hearing from you.

IDT/@ @ EXHIBIT
Po

DC-04-01100

 
  
    
 
  
    
  
 

CRAIG DYER,
Plaintiff(s),

Vv.

In the District Court
of Dallas County, Texas,
298th District Court

DYER CUSTOM INSTALLATION INC.;
LAURIE DYER; RICHARD GEETING;
JOSEPH GEETING; SUSAN LAMBFRT;
LAURIE GEETING; M JOSEPH
GEETING,
Defendant(s)
Brt'-Co

ASSOCIATE JUDGE’S DECISION RE: DEFENDANT DCI'S MOTION TO

COMPEL DISCOVERY RESPONSES (CONTINUATION)
(SAME FORCE AND EFFECT AS DistRICT CouRT ORDER IF NOT APPEALED)

APPEARANCES:

Counsel appearing for CRAIG DYER: KENNETH F. NYE AND MATTHEW L.
WESTON.

Counsel appearing for DYER CUSTOM INSTALLATION INC.: JACOB
THOMAS.

A record of this hearing was made by Diana Pereira, 972-270-4711.

The following is before the Court: DEFENDANT DCI'S MOTION TO COMPEL
DISCOVERY RESPONSES and PLAINTIFF’S MOTION TO RESET HEARING AND
FOR SANCTIONS.

After consideration of the Motion, the “Defendant DCI’s Response to Plaintiff's
Motion to Reset Hearing and for Sanctions, the pleadings, and the argument and
authorities of counsel, the Court GRANTS IN PART AND DENIES IN PART
DEFENDANT DCI'S MOTION TO COMPEL DISCOVERY RESPONSES and the

PLAINTIFF'S MOTION TO RESET HEARING AND FOR SANCTIONS . The Court

 

ASSOCIATE JUDGE'S DECISION PAGE 1 ~ -tules as follows:

1. The Plaintiff shall fully answer Request for Disclosure 194.2(d) on or before
August 25, 2006.

2. The Plain