Motion-Secondary: TIMOTHY G. PLETTA vs. HERITAGE HOUSE CLOCKS, INC., et al

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                                CAUSE NO. DC-20-07433


TIMOTHY G. PLETTA, Indv.                                                          IN THE DISTRICT COURT




                                           §§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§§
                               and
d/b/a Law Office of Timothy G.
Pletta and as Trustee for the
ANN HENNUM & TIMOTHY GERARD
PLETTA REVOCABLE TRUST, ANN H.
PLETTA, Indv. and MARIELLA L.
PLETTA,


               Plaintiffs

vs.

HERITAGE HOUSE CLOCKS, INC.
d/b/a Heritage House Clocks,
a Franchise Tax Ended Texas
        VALENTINO S.
Corporation,                                                                      134th   JUDICIAL DISTRICT
MARCHESONI, Indv. and d/b/a
Heritage House Clocks
NICHOLAS MARCHESONI, Indv.           and
d/b/a Heritage House Clocks
GLENDA MARCHESONI, Indv. and
d/b/a Heritage House Clocks,
B&R WILEY FAMILY, GP., L.L.C.,
B&R WILEY FAMILY, L.P. d/b/a
Servpro of Mesquite, Kaufman
County and Cedar Creek, BRANDON
J. WILEY a/k/a BRANDON JOE WILEY,
REGINA L. WILEY a/k/a REGINA LYNN
WILEY, JENNIFER EVARTT, EDWARD
EVARTT, a/k/a EDWARD EVART III
a/k/a EDWARD DEAN EVARTT a/k/a
EDDIE EVARTT and ALLSTATE
INSURANCE COMPANY,

               Defendants                                                         DALLAS COUNTY, TEXAS



ORDER GRANTING PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’
B&R WILEY FAMILY L.P.’S RESPONSE TO PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT AND NO-EVIDENCE SUMMARY JUDGMENT ON
DEFENDANTS’ AFFIRMATIVE DEFENSES                                                                              Page   1
        ORDER GRANTING PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’
      B&R WILEY FAMILY L.P.’S RESPONSE TO PLAINTIFFS’ MOTION FOR
      SUMMARY J UDGMENTAND NO-EVIDENCE SUMMARY JUDGMENT ON
                  DEFENDANTS’ AF FIRMATIVE DEFENSES


        The Court Rules on Plaintiffs’ Objections as follows:

(1)     The affidavit of Barbara Evartt. Specifically, Exhibits “D”,       “E”, and “F”   as hearsay not

        within an exception, lacks foundation, and authenticity.

           GRANTED                                      DENIED                             MODIFIED

(2)     Plettas object to the Affidavit of Barbara Evartt as follow:

        Plettas object to the Affidavit of Evartt as a Whole because she does not state how she

        obtained “personal knowledge”    of the facts   set forth in her affidavit. See Stone v.

        Midland Multifamily Equity REIT, 334 S.W.3d 371, 375 (Tex.App.          —   Dallas 2011, no

        pet).

           GRANTED                                      DENIED                             MODIFIED

(3)     Plaintiff objects to the testimony of Barbara Evartt in her attempt to lay down a factual

        predicate for admissibility in her Affidavit Paragraph 2, Second sentence wherein she

         states:


        “Servpro and Timothy P1etta(“P1etta”) entered into an Authorization to Perform Services

        and Directional Payment signed by Pletta.” - This is the Exhibit 43 document that B&R


        Wiley Family, L.P./Evartt testified that it was an incomplete document and Defendant

        would produce the original document.

         Said statement violates to claim a Rule 193 .6 testifying to a document that has not been


ORDER GRANTING PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’
B&R WILEY FAMILY L.P.’S RESPONSE TO PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT AND NO-EVIDENCE SUMMARY JUDGMENT ON
DEFENDANTS’ AFFIRMATIVE DEFENSES                                                                  Page 2
         produced.

           GRANTED                                       DENIED                             MODIFIED

(4)      Plaintiff objects to the testimony of Barbara Evartt in her attempt to lay down a factual

         predicate for admissibility in her Affidavit Paragraph 3, first and second sentences

         wherein she states:

         “A Servpro representative also signed the Authorization to Perform Services and

         Direction of Payment on behalf of Servpro. Pletta agreed to pay Servpro for the services

         rendered.”

         Said statement violates the “parol evidence rule” by stating that Pletta was a party to the

contract (Exhibit 43 to Eddie Evartt’s deposition) when Defendant’s Organizational

Representative clearly evidences that the document was not the correct contract and was

incomplete on its face.. Any statement beyond the terms of the four corners of the orig'nal

contract is subject to the parol evidence rule and inadmissible to the extent it conflicts with the

terms   of the written agreement. See Ebberts v. Carpenter Production Ca, 256 S.W.2d 601, 625

(TeX.Civ.App. — Beaumont, 1953), Distributors Investment Company v. Patton, 130 Tex. 449,

110 S.W.2d 47; Super-Cold Southwest Company v. Elkins, 140 Tex. 48, 166 S.W.2d 97, and

more recently, Smith v. Smith, 794 S.W.2d 823, 827 (Tex.App.          —   Dallas 1990, no pet). Evidence

violating the parol evidence rule has no legal effect and “merely constitutes proof of facts that are

immaterial and inoperative”. See Piper, Stiles & Ladd v. Fiduciary and Deposit Company, 435

S.W.2d 934, 940 (Tex.App.      —   Houston [15‘ District] 1968, writ ref’d n.r.e.).

         Said statement is an unsubstantiated factual conclusion and therefore inadmissible. See


ORDER GRANTING PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’
B&R WILEY FAMILY L.P.’S RESPONSE TO PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT AND NO-EVIDENCE SUMMARY JUDGMENT ON
DEFENDANTS’ AFFIRMATIVE DEFENSES                                                                 Page 3
Harley - Davidson Motor Co. v. Young, 720 S.W.2d 211, 213 (TeX.App.           —   Houston [14m

District] 1986, no writ). The statement is a bare factual conclusion which is not in evidence and

is not probative of any facts. See Bavishi   v.   Sterling Air Conditioning, Inc., No. 01-10-00610-

CV (Tex.App. — Houston [1“ Division] 2011, no pet.) (memo op;8-11-1 1).

          GRANTED                                       DENIED                            MODIFIED

         Exhibit Nos. “D”,   “E” and “F” are hearsay, not Within an exception, lacks foundation and

authenticity.

          GRANTED                                        DENIED                           MODIFIED



Dated:               ,2022
                                                                        JUDGE PRESIDING




ORDER GRANTING PLAINTIFFS’ OBJECTIONS TO DEFENDANTS’
B&R WILEY FAMILY L.P.’S RESPONSE TO PLAINTIFFS’ MOTION FOR
SUMMARY JUDGMENT AND NO-EVIDENCE SUMMARY JUDGMENT ON
DEFENDANTS’ AFFIRMATIVE DEFENSES                                                                 Page 4