Preview
FILED
2/6/2023 9:31 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Margaret Thomas DEPUTY
CAUSE NO. DC-21-04901
TONY EVANS, SR., and ARETHA EVANS, § IN THE DISTRICT COURT OF
individually and on behalf of their minor son, §
T.E., deceased, and DEON WILLIAMS. §
Plaintiffs,
vs. DALLAS COUNTY, TEXAS
TASACOM REAL ESTATE, LLC d/b/a
HAWTHORN SUITES DALLAS LOVE
FIELD, HAWTHORN SUITES
FRANCHISING, INC., WYNDHAM
HOTELS & RESORTS, INC.,
MOHAMMAD SADIQ NOSHAHI,
DIAMOND STAFFING SERVICES, LLC,
WYNDHAM HOTEL GROUP, LLC, 162" JUDICIAL DISTRICT
TASACOM TECHNOLOGIES, INC.,
SANJEEV JAIN, and MMAROOFUL
CHOUDHURY,
Defendants.
DEFENDANT WYNDHAM HOTELS & RESORTS, INC., WYNDHAM HOTEL GROUP,
LLC, AND HAWTHORN SUITES FRANCHISING, INC.’S RESPONSE IN
OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
Defendants Wyndham Hotels & Resorts, Inc. (“WHR”), Wyndham Hotel Group, LLC
(“WHG”), and Hawthorn Suites Franchising, Inc. (“HSF”) (collectively, the “Wyndham
Defendants”), by and through their undersigned counsel, submit this response in opposition to
Plaintiffs’ motion to compel (the “Motion”), and in support thereof respectfully state as follows:
I INTRODUCTION
Tasacom Real Estate, LLC (“Tasacom”) owns and operates a hotel located at 7900
Brookriver Drive, Dallas, Texas 75347 (“Tasacom Hotel”). Tasacom licensed the Hawthorn
Suites® trademarks and proprietary methodology from HSF pursuant to a typical franchise
agreement. See generally Franchise Agreement, attached as Exhibit A.
In April 2021, as alleged in the Sixth Amended Petition (the “Petition”), Deon Williams
and T.E. (“Plaintiffs”) suffered gunshot wounds while on the premises of the Tasacom Hotel. T.E.
died shortly after. There is no general duty to prevent third-party crimes, except in limited
circumstances like premises liability. The threshold liability question, therefore, is whether any
particular defendant exercised the “control” necessary to give rise to premises liability duties.
Plaintiffs have now served 269 discovery requests on the Wyndham Defendants and, in
response, the Wyndham Defendants have produced thousands of pages of documents showing that
none of the Wyndham Defendants owned, operated, employed persons working at, or otherwise
controlled the day-to-day operations of the Tasacom Hotel. HSF merely had a typical franchise
relationship, which—as a matter of law—does not give rise to premises liability duties. See, e.g.,
DoubleTree Hotels Corp. v. Person, 122 §.W.3d 917, 919 (Tex. App.—Corpus Christi 2003, no
pet.) (reversing a default judgment against a hotel brand franchisor in a premises liability case,
recognizing that “setting general minimum operational standards,” combined with retaining the
right to conduct “inspections” and “terminate” a franchise agreement for noncompliance, does not
establish a cognizable duty by the franchisor, even where the franchisor fails to appear).
The Motion seeks an order compelling wide-ranging discovery that is irrelevant to any
cognizable theory of liability, including discovery about hotels and franchisees that are not at issue
in this case. In arguing that the discovery sought is relevant, Plaintiffs cobble together inapposite
case law outside of the franchise context, without ever citing a Texas appellate decision on
franchisor liability. That is because Texas appellate courts consistently reject the theories liability
that Plaintiffs contend make the discovery sought relevant.
WYNDHAM DEFENDANTS’ RESPONSE
IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL
Plaintiffs’ pursuit of this patently overbroad, irrelevant material amounts to an improper
fishing expedition that apparently is aimed at forcing the Wyndham Defendants to incur legal
expenses needlessly, not at advancing any viable legal theory. See, e.g., Texaco, Inc. v. Sanderson,
898 S.W.2d 813, 815 (Tex. 1995) (“The request in this case, however, is not close; it is well outside
the bounds of proper discovery. It is not merely an impermissible fishing expedition; it is an effort
to dredge the lake in hopes of finding a fish.”).
The Wyndham Defendants—consistent with unanimous, well-established Texas law—
respectfully request that Plaintiffs’ Motion be denied.
IL. BACKGROUND
WHR is the ultimate parent company of several hotel brand franchisors, including HSF,
the Hawthorn Suites® franchisor. WHG is a WHR subsidiary as well. Per the Franchise Agreement
between HSF and Tasacom, HSF licensed the Hawthorn Suites® trademarks and proprietary
methodology to Tasacom for the Tasacom Hotel. See Franchise Agreement §§ 1, 15. In exchange,
Tasacom agreed to pay certain fees and follow the Hawthorn Suites® brand standards, as reflected
in the Hawthorn Suites® Standards of Operation and Design Manual (the “Standards Manual”).
See, e.g., Franchise Agreement §§ 4.7, 7.1.1.
Consistent with a typical franchise relationship, HSF requires franchisees to follow the
Hawthorn Suites® brand standards “to protect the [Hawthorn Suites®] System and the [Hawthorn
Suites®] Marks, and not to control the day-to-day operations of [any franchised] business.” See
Franchise Agreement § 4.7. Indeed, the Franchise Agreement makes clear:
You [Tasacom] will exercise full and complete control over and
have full responsibility for your contracts, daily operations, labor
relations, employment practices and policies, including but not
limited to the recruitment, selection, hiring, disciplining, firing,
compensation, work rules and schedules of your employees.
WYNDHAM DEFENDANTS’ RESPONSE
IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL
Franchise Agreement § 16.1. HSF has no right to seize control over, or otherwise stop operations
at, the Tasacom Hotel even in the event of a default under the Franchise Agreement. Rather, a
breach of the Franchise Agreement simply entitles HSF, in certain circumstances, to terminate
Tasacom’s license to use the Hawthorn Suites® marks, along with its right to participate in the
Hawthorn Suites® franchise system. See Franchise Agreement §§ 11.1, 11.2. Put simply, the
Wyndham Defendants did not (and does not now) own, operate, employ persons at, or otherwise
control the day-to-day operations of the Tasacom Hotel.
Plaintiffs suffered gunshot wounds while on the premises of the Tasacom Hotel. The
Petition seeks to hold the Wyndham Defendants liable based on the franchise relationship between
HSF and Tasacom. Plaintiffs have propounded 269 discovery requests on the Wyndham
Defendants. The Wyndham Defendants have produced thousands of pages of documents, above
and beyond what could be arguably relevant to this case. But, where Plaintiffs have sought
discovery that strays well beyond the scope of what is reasonably relevant in this case (e.g., hotels
that are not at issue, nonparty franchisees that are not at issue, etc.), the Wyndham Defendants
have appropriately objected.
Leading up to this Motion, counsel for the Wyndham Defendants attempted to meet-and-
confer and asked Plaintiffs to identify any legal authority that would counter their relevance
objections. Counsel for Plaintiffs acknowledged that “there is case law [that] is supportive” of the
Wyndham Defendants’ positions but claimed that there was contrary authority as well. See E-mail
from Emily Taylor (Plaintiffs) to Jason Hopkins (Wyndham), Jan. 5, 2023, 6:31AM, attached as
Exhibit B. Counsel for the Wyndham Defendants asked Plaintiffs to identify any such contrary
authority so that the Wyndham Defendants could consider it. See E-mail from Christopher
Donovan (Wyndham) to Emily Taylor (Plaintiffs), Jan. 5, 2023, 7:11AM (‘Yes, we would like to
WYNDHAM DEFENDANTS’ RESPONSE
IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL
confer. As part of that, would you mind sending us the caselaw (or even just the citations) you are
referencing? We'd like to take that into consideration in evaluating if/where we can bridge the gap
on some of these issues.”).
Plaintiffs refused, stating that “Plaintiffs are not doing your legal research for you at this
stage.” See E-mail from Aubrey “Nick” Pittman (Plaintiffs) to Christopher Donovan (Wyndham),
January 5, 2023, 7:44AM. Plaintiffs filed their Motion without first identifying which particular
requests were in dispute. By all appearances, Plaintiffs had no intention of meaningfully conferring
about the issues raised in their Motion.
The Motion, despite being over twenty pages long, argues in broad, sweeping generalities.
Plaintiffs make no effort to defend the propriety of any particular request or address (or, in many
instances, even acknowledge) the Wyndham Defendants’ objections to those requests. The Motion
also ignores that, for several requests, the Wyndham Defendants have already produced responsive
material.
Til. LEGAL STANDARD
Discovery is limited to that which is relevant and not privileged. See Tex. R. Civ. P.
192.3(a). Discovery requests must be “reasonably tailored to include only relevant matters.” Jn re
CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003). It is an abuse of discretion to compel discovery that
is not material to an adequately pled, cognizable theory of liability. See In re Methodist Primary
Care Group, 14-17-00299-CV, 2017 WL 3480292, at *2-3 (Tex. App.—Houston [14th Dist.] Aug.
14, 2017, no pet.) (per curiam) (finding that discovery order was an abuse of discretion because it
compelled discovery that was not supported by well-pled claims); Jn re Compton, 11-20-00154-
CV, 2020 WL 4519562, at *5 (Tex. App.—Eastland Aug. 6, 2020, no pet.) (“We hold that, because
Real Parties in Interest have not adequately pleaded an underlying cause of action, Judge Cashon
WYNDHAM DEFENDANTS’ RESPONSE
IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL
abused his discretion when he ordered the production . . . and that Relators do not have an adequate
remedy by appeal.”); Al Parker Buick Co. v. Touchy, 788 S.W.2d 129, 131 (Tex. App.—Houston
[Ist Dist.] 1990, no writ). That is true even where burden is slight or nonexistent. In re Allstate
County Mut. Ins. Co., 227 S.W.3d 667, 670 (Tex. 2007). There is no adequate remedy on appeal
for an overbroad discovery order, or where an order compels discovery that is clearly harassing.
See, e.g., In re CSX Corp., 124 S.W.3d 149, 153 (Tex. 2003); In re Walmart, Inc., 08-20-00191-
CV, 2021 WL 1153033, at *8 (Tex. App.—El Paso Mar. 26, 2021, no pet. h.).
IV. ARGUMENTS & AUTHORITIES
Relevance in discovery, necessarily, is measured against the well-pled allegations and
legally cognizable claims asserted in the pleadings. See In re Citizens Supporting Metro Sols., Inc.,
14-07-00190-CV, 2007 WL 4277850, at *3 (Tex. App.—Houston [14th Dist.] Oct. 18, 2007, no
pet.) (“The scope of discovery is measured by the live pleadings regarding the pending claims.”);
see also In re Compton, 11-20-00154-CV, 2020 WL 4519562, at *3 (Tex. App.—Eastland Aug.
6, 2020, no pet.) (“To determine whether a discovery request seeks information that will aid the
dispute’s resolution, we look to the pleadings to determine the nature of the dispute.”). In other
words, discovery requests cannot be based on unviable legal theories. See In re StarFlite Mgmt.
Group, Inc., 162 S.W.3d 409, 413 (Tex. App.—Beaumont 2005, no pet.) (holding that, for material
to be discoverable, there must be a properly pled cause of action that makes it relevant).
Here, Plaintiffs misstate Texas law on franchisor liability, and then argue that Plaintiffs are
entitled to conduct far-reaching discovery based on their unviable, inapplicable legal theories.
Evaluating Plaintiffs’ requests under applicable Texas law on franchisor liability, granting
Plaintiffs’ Motion would constitute an abuse of discretion. See Walmart, 2021 WL 1153033, at *9
(vacating discovery order because it permitted “the discovery of information that is irrelevant
WYNDHAM DEFENDANTS’ RESPONSE
IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL
under the [] pleaded theories,” noting that the trial court “essentially authorized a fishing
expedition”); Compton, 2020 WL 4519562 at *5 (holding that district judge “abused his discretion
when he ordered production” because the plaintiffs had “not adequately pleaded an underlying
cause of action”); In re Hochheim Prairie Cas. Ins. Co., 09-19-00158-CV, 2019 WL 3330593, at
*2 (Tex. App.—Beaumont July 25, 2019, no pet.).
A. The Wyndham Defendants have already produced materials that, arguably,
are relevant to assessing any duty (the Wyndham Defendants did not owe one).
Plaintiffs identify twenty-six requests for production and five interrogatories that,
according to Plaintiffs, are relevant to duty and foreseeability. See Motion at 10-16. As explained
below, the Wyndham Defendants have already produced the materials that are reasonably relevant
to duty and foreseeability. The Motion should be denied.
1 The Wyndham Defendants have already produced materials that,
arguably, are relevant to showing whether the Wyndham Defendants
controlled the Tasacom Hotel (they did not).
Plaintiffs misstate the law on the duty of franchisors to prevent third-party crimes on
franchise premises. The Motion cites cases from other contexts, incorrectly claim those cases
pertain to franchising, and then argues that this inapposite authority justifies virtually limitless
discovery. Plaintiffs’ arguments lack merit.
For starters, under Texas law, there is no duty to prevent third-party crimes except in
limited circumstances, such as premises liability. See, e.g., Timberwalk Apartments, Partners, Inc.
v. Cain, 972 S.W.2d 749, 756 (Tex. 1998) (“As a rule, a person has no legal duty to protect another
from the criminal acts of a third person. An exception is that one who controls premises does have
a duty to use ordinary care to protect invitees . . . .” (internal quotations and alterations omitted));
Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). “To establish premises liability, a plaintiff
must show that the defendant had control over and responsibility for the premises.” Cohen v.
WYNDHAM DEFENDANTS’ RESPONSE
IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL
Landry’s Inc., 442 §.W.3d 818, 824 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (citing
Mayer v. Willowbrook Plaza Ltd. P’ship, 278 S.W.3d 901, 909 (Tex. App.—Houston [14th Dist.]
2009, no pet.)). “Control can be demonstrated by ownership, occupation, management, or
possession of the premises,” and it can be established by “either a contractual agreement expressly
assigning the right of control or an actual exercise of control.” Jd. (citing Dow Chem. Co. v. Bright,
89 S.W.3d 602, 606 (Tex. 2002)). But, for a duty to arise, the “control must relate to the condition
or the activity that caused the injury.” /d.
Requiring franchisees, by contract, to follow brand standards in their operations is not, as
a matter of blackletter Texas law, tantamount to “control.” See, e.g., Risner v. McDonald's Corp.,
18 S.W.3d 903, 906 (Tex. App.—Beaumont 2000, pet. denied) (holding that, even where the
franchisor owned the building in which the franchisee operates, a restaurant franchisor lacked the
requisite control, as a matter of law, to support a premises liability claim); Smith v. Foodmaker,
Inc., 928 S.W.2d 683, 687 (Tex. App.—Fort Worth 1996, no writ) (recognizing that requiring a
“franchisee to follow ‘standards of operation’” does not amount to the type or degree of control
necessary to hold a franchisor liable under a premises theory). Relatedly, franchisors do not owe a
duty to “enforce” brand standards by terminating noncompliant franchisees. See, e.g., Fitz v. Days
Inns Worldwide, Inc., 147 $.W.3d 467, 473-74 (Tex. App.—San Antonio 2004, pet. denied)
(rejecting argument that the franchisor owed a duty to “enforce compliance” with its brand
standards, explaining that the right to inspect a franchisee’s operations and terminate the
franchisee’s license to use the franchisor’s trademarks does not amount to the type or degree of
control that could trigger such a duty, as a matter of law).
The relevant inquiry in this case, therefore, centers on whether the Wyndham Defendants
controlled the premises of the Tasacom Hotel for purposes of preventing third-party crimes (they
WYNDHAM DEFENDANTS’ RESPONSE
IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL
did not). See, e.g., DoubleTree Hotels Corp. v. Person, 122 S.W.3d 917, 919 (Tex. App.—Corpus
Christi 2003, no pet.) (reversing a default judgment against a hotel brand franchisor in a premises
liability case, recognizing that “setting general minimum operational standards,” combined with
retaining the right to conduct “inspections” and “terminate a franchisee’s operations” for
noncompliance, does not establish a cognizable duty by the franchisor, even where the franchisor
failed to answer the lawsuit).
The Wyndham Defendants have already produced the documents that govern the franchise
relationship between HSF and Tasacom (i.e., the Franchise Agreement and the Standards Manual),
which the Wyndham Defendants noted in response to several requests.' Plaintiffs’ requests
otherwise do not seek documents regarding control over the Tasacom Hotel’s premises. Instead,
they seek materials about the entire franchise system as a whole,” other hotels that are not at issue,?
and other franchisees that are not at issue.‘ Other requests seek patently irrelevant information
(e.g., insurance requirements, communications with industry associations, all communications
with Tasacom without limitation).
2. The Wyndham Defendants have already produced materials that,
arguably, are relevant to the foreseeability of the third-party crimes
committed against Williams and T.E. at the Tasacom Hotel.
In Timberwalk, the Texas Supreme Court explained that prior third-party crimes can be
used to establish the foreseeability of future crimes for purposes of premises liability, but only in
| See, e.g., WHG’s Responses to Plaintiffs’ First Set of RFPs (Exhibit A to Plaintiff's Motion)
at RFP Nos. 35, 36, 40.
? See, e.g., Exhibit A to Plaintiffs’ Motion at RFP Nos. 5, 15, 30, 40, and 41; WHR’s Responses
to Plaintiffs’ First Set of Interrogatories (Exhibit D to Plaintiffs’ Motion) at Interrogatory Nos. 1,
2, 3, 4, and 6.
5 See, e.g., Exhibit D to Plaintiffs’ Motion at Interrogatory Nos. 1 and 2.
4 See, e.g., Exhibit A to Plaintiffs’ Motion at RFP Nos. 7, 8, 9, 10, 11, 12, and 42; Exhibit D to
Plaintiffs’ Motion to Interrogatory Nos. 1 and 2.
5 See, e.g., Exhibit A to Plaintiffs’ Motion at RFP Nos. 12, 13, 14, 50.
WYNDHAM DEFENDANTS’ RESPONSE
IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL
limited circumstances. 972 S.W.2d at 757. “In determining whether the occurrence of certain
criminal conduct on a landowner's property should have been foreseen, courts should consider
whether any criminal conduct previously occurred on or near the property, how recently it
occurred, how often it occurred, how similar the conduct was to the conduct on the property, and
what publicity was given the occurrences to indicate that the landowner knew or should have
known about them.” /d.; Wang v. Trea Churchill on the Park, LLC, No. 05-21-00880-CV, 2022
WL 13811953, at *3 (Tex. App.—Dallas Oct. 24, 2022, pet. denied).
Following the Texas Supreme Court’s guidance, the Wyndham Defendants—after
conducting a reasonably diligent search—have produced communications reflecting allegations of
potential crimes involving firearms at the Tasacom Hotel for the three years prior to the incident
at issue.° Beyond that, Plaintiffs seek documents relating to alleged crimes at different hotels,’
crimes at hotels operated by different franchisees,* and crimes that are dissimilar to the shooting
at issue (e.g., prostitution),’ including allegations of crime occurring after the incident in question.
Such materials are irrelevant to whether this shooting at this hotel was foreseeable at the time of
the incident. See Timberwalk, 972 S.W.2d at 757 (“[M]erely because several crimes have occurred
at a particular ATM located in a high-crime area does not render it more likely that future crimes
will occur at every ATM the bank owns. . . . [T]he stabbing of a guest at an apartment complex
was not foreseeable from four prior incidents of vandalism and theft of a refrigerator from a vacant
apartment.”).
® See, e.g., Exhibit A to Plaintiffs’ Motion at RFP Nos. 27, 29, 32, 38, 46, and 50; HSF’s
Responses to Plaintiffs’ First Set of RFPs, attached as Exhibit C at RFP Nos. 5, 15, and 43.
” See, e.g., Exhibit D to Plaintiffs’ Motion at Interrogatory Nos. 1 and 2.
8 See, e.g., Exhibit A to Plaintiffs’ Motion at RFP Nos. 8.
° See, e.g., Exhibit A to Plaintiffs’ Motion at RFP Nos. 27, 28, 29, and 46; Exhibit D to
Plaintiffs’ Motion at Interrogatory Nos. | and 2.
WYNDHAM DEFENDANTS’ RESPONSE
IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL 10
Plaintiffs urge the Court to disregard Timberwalk, citing the Texas Supreme Court’s later
decision in Del Lago Partners, Inc. v. Smith, 307 8.W.3d 762, 768 (Tex. 2010). See Motion at 8-
9. In Del Lago, a “fight occurred in a bar at closing time following ninety minutes of heated
altercations among intoxicated patrons.” /d. The Texas Supreme Court recognized that, in addition
to the limited circumstances set forth in Timberwalk, “criminal misconduct is sometimes
foreseeable because of immediately preceding conduct.” /d. at 769. But the Texas Supreme Court
reiterated that Timberwalk still controls the analysis “in situations where the premises owner has
no direct knowledge that criminal conduct is imminent, but the owner may nevertheless have a
duty protect invitees because past criminal conduct made similar conduct in the future
foreseeable.” /d. at 768. Here, Plaintiffs seek discovery regarding prior unrelated criminal conduct
(not about the circumstances at the Tasacom Hotel immediately preceding the incident at issue).
Accordingly, the limitations set forth in Timberwalk control.
In short, granting Plaintiffs’ Motion and compelling the far-reaching discovery sought
would constitute a clear abuse of discretion. See, e.g., CSX, 124 S.W.3d at 152 (“Discovery orders
requiring document production from an unreasonably long time period or from distant and
unrelated locales are impermissibly overbroad.”); Dillard Dep’t Stores, Inc. v. Hall, 909 S.W.2d
491, 492 (Tex. 1995) (“We hold that a twenty-state search for documents over a five-year period
is overly broad as a matter of law.”); K Mart Corp. v. Sanderson, 937 S.W.2s 429, 431 (Tex. 1996)
(“The likelihood that criminal conduct on the parking lot of a K Mart store or other property owned
by Weingarten in El Paso or Amarillo as long ago as 1989, or outside Texas as long ago as 1986,
will have even a miniscule bearing on this case is far too small to justify discovery.”); In re Ashland
Oil, No. 05-98-00708-CV, 1998 WL 351293, at *4 (Tex. App.—Dallas July 2, 1998, no pet.)
WYNDHAM DEFENDANTS’ RESPONSE
IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL 11
(“Activity at other plants and within other divisions does not qualify as a substantially similar
circumstance to be relevant discovery to support plaintiffs’ claims.”).
B. The Wyndham Defendants have already produced the so-called “business
relationship documents” that, arguably, are relevant to this dispute.
Next, Plaintiffs seek an order compelling the Wyndham Defendants to produce so-called
“business relationship documents” in response to six different requests for production, arguing
(without explanation) that they are “certainly relevant” to whether the Wyndham Defendants
controlled the Tasacom Hotel. See Motion at 17-18. Again, the Wyndham Defendants have already
produced the materials governing HSF’s franchise relationship with Tasacom—namely, the
Franchise Agreement and the Standards Manual. Otherwise, Plaintiffs seek documents relating to
the relationships between and among the Wyndham Defendants. See Motion at 17-18. Even though
such materials are irrelevant to whether the Wyndham Defendants controlled the Tasacom Hotel,
the Wyndham Defendants have already produced materials showing that WHR is the ultimate
parent company of WHG and HSF, and the Wyndham Defendants have repeatedly noted that
WHR is a publicly traded company whose SEC filings are publicly available. Insofar as Plaintiffs
seek additional documents, it is not clear. In this regard, the Motion should be denied.
Cc. Plaintiffs’ request for marketing materials is, on its face, an irrelevant and
improper fishing expedition.
Plaintiffs seek broad discovery regarding the Wyndham Defendants’ marketing efforts in
the Dallas-Fort Worth Metroplex. See Motion at 18-19. The Wyndham Defendants objected,
noting (among other things) that:
[I]nsofar as Plaintiffs contend that the requested documents relate to
their purported DTPA claims, Plaintiffs do not allege that they
rented rooms at the Tasacom Hotel (much less that they rented
rooms from [the Wyndham Defendants], which did not own or
operate the hotel), making the requested material irrelevant to any
cognizable DTPA claim. See, e.g., Amstadt v. U.S. Brass Corp., 919
WYNDHAM DEFENDANTS’ RESPONSE
IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL 12
S.W.2d 644, 650 (Tex. 1996); Chavez v. Ford Motor Co., EP-18-
CV-109-KC, 2018 WL 6190601, at *3 (W.D. Tex. Sept. 26, 2018)
(recognizing that a defendant cannot be held liable under the DTPA
unless it “directly transacted with the plaintiff-consumer’). [The
Wyndham Defendants] further object[] to this request because it
represents an impermissible fishing expedition aimed at harassing
WHG. Indeed, insofar as Plaintiffs can claim in good faith that a
statement allegedly made in violation of the DTPA caused injuries,
they should be able to identify any such statements from the outset
without the sweeping discovery sought. See, e.g., Doe v. Boys Clubs
of Greater Dallas, Inc., 907 S.W.2d 472, 481 (Tex. 1995)
(recognizing that, under the DTPA, the alleged deceptive trade
practice must be a “producing cause” of the plaintiff's injury, which
“requires some evidence that the defendant’s act or omission was
the cause in fact of the plaintiff's injury”).'°
In response, the Motion offers no basis for such far-reaching discovery under the Texas Deceptive
Trade Practices Act, arguing instead (without explanation) it is relevant to Plaintiffs’ so-called
“misrepresentation” claim. See Motion at 16; Petition at § 122-27. But “ “ ‘misrepresentation” is not
a cognizable claim under Texas law. “Negligent misrepresentation” is a cognizable claim, but it
clearly does not apply in this case. See, e.g., Zaan, LLC v. Sangani, No. 05-12-00423-CV, 2015
WL 2398652, at *6 (Tex. App.—Dallas May 20, 2015, pet. denied) (“The elements of negligent
misrepresentation are: (1) a representation is made by a defendant in the course of his business, or
in a transaction in which he has a pecuniary interest; (2) the defendant supplies ‘false information’
for the guidance of others in their business; (3) the defendant did not exercise reasonable care or
competence in obtaining or communicating the information; and (4) the plaintiff suffers pecuniary
loss by justifiably relying on the representation.” (emphasis added)).
1 See, e.g., Exhibit A to Plaintiffs’ Motion at RFP 16; Exhibit B to Plaintiffs’ Motion at RFP
16; Exhibit C to Plaintiffs’ Motion at RFP 16.
WYNDHAM DEFENDANTS’ RESPONSE
IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL 13
Put simply, Plaintiffs’ requests for marketing materials are untethered to any viable legal
theory. Plaintiffs’ pursuit of this material is a clear improper fishing expedition. The Court should
deny Plaintiffs’ Motion with respect to such information.
D. Plaintiffs’ “conspiracy” claim is not well pled and provides no basis for
discovery.
Plaintiffs seek broad discovery regarding Defendants’ net worth and the minimum
insurance requirements set forth in the Franchise Agreement. See Motion at 19-20. The Wyndham
Defendants objected based on relevance and because Plaintiffs are obligated under Section
41.0115 of the Texas Civil Practice & Remedies Code to seek leave from the Court prior to
conducting discovery into a defendant’s net worth, which Plaintiffs failed to do.'! In the Motion,
Plaintiffs argue that such material is relevant to Plaintiffs oe conspiracy” claim, which is based on
the notion that “all the defendants” conspired to “permit Tasacom to operate the hotel despite being
undercapitalized.” See Motion at 19-20. But conspiracy is a derivative tort. See, e.g., W. Fork
Advisors, LLC y. SunGard Consulting Services, LLC, 437 S.W.3d 917, 920 (Tex. App.—Dallas
2014, pet. denied) (“Conspiracy is a derivative tort because ‘a defendant’s liability for conspiracy
depends on participation in some underlying tort for which the plaintiff seeks to hold at least one
of the named defendants liable.”” (quoting Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996)).
Where there is no underlying tort, there can be no viable conspiracy claim. See, e.g., Chu v. Hong,
249 S.W.3d 441, 444 (Tex. 2008). Neither the Motion nor the Petition articulate a conceivable
underlying tort based on the notion that Tasacom was “undercapitalized.” Motion at 20. Therefore,
again, Plaintiffs’ discovery requests are unsupported by any viable theory of liability. The Motion
should be denied.
__
"| See, e.g., Exhibit A to Plaintiffs’ Motion at RFP Nos. 6 and 13; Exhibit B to Plaintiffs’
Motion at RFP Nos. 6 and 13; Exhibit C to Plaintiffs’ Motion at RFP Nos. 6 and 13.
WYNDHAM DEFENDANTS’ RESPONSE
IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL 14
V. CONCLUSION & REQUEST FOR RELIEF
For the foregoing reasons, the Wyndham Defendants respectfully request that the Court
DENY Plaintiffs’ Motion and grant the Wyndham Defendants any relief to which they may be
justly entitled.
Date: February 6, 2023 Respectfully submitted,
DLA PIPER LLP (US)
/s/_ Jason Hopkins
Jason Hopkins
State Bar No. 24059969
jason.hopkins@dlapiper.com
1900 N. Pearl St. Suite 2200
Dallas, Texas 75201
T: 214.743.4500
F: 214.743.4545
Christopher B. Donovan
State Bar No. 24097614
christopher.b.donovan@dlapiper.com
845 Texas Avenue, Suite 3800
Houston, Texas 77002
T: 713.425.8400
F: 713.425.8401
Counsel for Defendants
Wyndham Hotels & Resorts, Inc.,
Wyndham Hotel Group, LLC, and
Hawthorn Suites Franchising, Inc.
WYNDHAM DEFENDANTS’ RESPONSE
IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL 15
CERTIFICATE OF SERVICE
I hereby certify that, on February 6, 2023, a true and correct copy of the foregoing
document was served on counsel of record in accordance with the Texas Rules of Civil Procedure
via the court’s electronic filing system.
/s/ Christopher B. Donovan
Christopher B. Donovan
WYNDHAM DEFENDANTS’ RESPONSE
IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL 16
Exhibit A.
Location Dallas, Texas
Entity No 11457-06
Unit No #30808
HAWTHORN SUITES FRANCHISING, INC.
FRANCHISE AGREEMENT
THIS FRANCHISE AGREEMENT (“Agreement”), dated Feb da ,wih,is
between HAWTHORN SUITES FRANCHISING, INC., a Georgia corporation (“we”, “our”,
or “us”), and TASACOM REAL ESTATE LLC, a Texas limited lability company (“you”)
The defimtrons of capitalized terms are found in Appendix A_ In consideration of the following
mutual promises, the parties agree as follows
1. Franchise. We have the exclusive right to franchise to you the distinctive “Hawthorn Suites
by Wyndham” System for providing transient guest lodging services We grant to you and you
accept the Franchise, effective and beginning on the Opening Date and ending on the earltest to
occur of the Term’s expiration or a Termination The Franchise ts effective only at the Location
and may not be transferred or relocated You will call the Facility a “Hawthorn Suites by
Wyndham” You may adopt additional or secondary designations for the Facility with our prior
written consent, which we may withhold, condition, or withdraw on written notice in our sole
discretion You shall not affiliate or identify the Facility with another franchise system,
reservation system, brand, cooperative or registered mark during the Term
2. Protected Territory. We will not own, operate, lease, manage, or license any party but you to
operate a Chain Facility in the “Protected Terntory”, defined below, while this Agreement 1s in
effect We may own, operate, lease, manage, franchise or license anyone to operate any Chain
Facility located anywhere outside the Protected Terntory without any restnction or obligation to
you We may grant Protected Territories for other Chain Facilities that overlap your Protected
Terntory While this Agreement 1s in effect, neither you nor your officers, directors, general
partners or owners of 25% or more of your Equity Interests, may own, operate, lease, manage or
franchise any time share resort, vacation club, residence club, fractional ownership residence,
condomimum/apartment easing or rental business, or the like, for any facility or business that
shares directly or indirectly, common areas, amenities, recreation facilities, services, supplies or
support activities with the Facility You will use any information obtained through the Reservation
System to refer guests, directly or indirectly, only to Chain Facilities This Section does not apply
to any Chain Facility located in the Protected Terntory on the Effective Date, which we may renew,
relicense, allow to expand, or replace with a replacement Facility located within the same trading
area having not more than 120% of the guest rooms of the replaced Chain Facility if its franchise
with us terminates or 15 not renewed The Protected Terntory fairly represents the Facihity's trading
area, and you acknowledge that There are no express or implied terntonal nghts or agreements
between the parties except as stated in this Section You urevocably watve any nght to seek or
obtain the benefits of any policy we now follow or may in the future follow to notify you about
proposed Chain Facilities in the general area of the Facility, solicit information about the effect of
the proposed Chain Facility on the revenue or occupancy of the Facility or decide whether to add
the proposed Chain Facility to the Chain based on the potential effect of the proposed Chain Facility
on the Facility or its performance You further acknowledge and agree that notwithstanding the
1
HAW IRANSIER
Q2/17
WHRHSF_0000004
Exhibit A.
foregomg, we may operate, lease, manage, or Itcense any other party to operate a Chain Facility in
the Protected Terntory beginning (a) six months pnor to the expiration of this Agreement, or (b) as
of the date that a date for the premature termination of this Agreement has been confirmed in
wnting by us The covenants in this Section are mutually dependent, if you breach this Section,
your Protected Territory will be the Location only The Protected Terntory means an area within a
circle created by a two (2) mile radius whose center point is the front door of the Facility
3. Your Improvement and Operating Obligations.
3.1 Pre-Opening Improvements. You must select, acquire, construct and/or renovate the
Facility as provided in Schedule D
32 Operation. You will operate and maintain the Facility continuously afier the Opening Date
on a year-round basis as required by System Standards and offer transient guest lodging and
other related services of the Facility (including those specified on Schedule B) to the public in
comphance with all federal, state, and local laws, regulations and ordinances as well as System
Standards You will keep the Facility in a clean, neat, and sanitary condition You will clean,
repair, replace, renovate, refurbish, paint, and redecorate the Facility and 1ts FF&E as and when
needed to comply with System Standards The Facility will be managed by either a management
company or an individual manager with significant training and experience in general
management of similar lodging facilities The Facility will accept payment from guests by all
credit and debit cards we designate in the System Standards Manual The Facility will follow
standard industry practices for safeguarding cardholder information, applicable laws and
regulations, and such other requirements as we may include in the System Standards Manual or as
we may otherwise communicate from time to ume for such purpose You may add to or
discontinue the amenities, services and facilities described in Schedule B, or lease or subcontract
any service or portion of the Facility, only with our prior written consent which we will not
unreasonably withhold or delay. Your front desk operation, telephone system, parking lot,
swimming pool and other guest service factliies may not be shared with or used by guests of
another lodging or housing facility You acknowledge that any breach of System Standards for
the Facility, its guest amenities, and your guest service performance ts a material breach of this
Agreement Upon our reasonable request, you will provide us with then-current copies of the
documents evidencing your ownership of, or right to possess, the Facility and/or the real property
upon which the Facility is located, and a complete and accurate list of all of your owners and
their Equity Interests
33 Traming. You (or a person with executive authority if you are an entity) and the Facility’s
general manager (or other representative who exercises day to day operational authonty) will
attend the training programs described in Sectton 4 1 we designate as mandatory for franchisees
and general managers, respectively You will train or cause the training of all Facility personnel
as and when required by System Standards and this Agreement You will pay for all travel,
lodging, meals and compensation expenses of the people you send for training programs, the cost
of traiming materials and other reasonable charges we may impose for training under Section 4 1,
and all travel, lodging, meal and facility and equipment rental expenses of our representatives if
training 1s provided at the Facility
HAW TRANSFER
Qa
WHRHSF_0000005
Exhibit A.
3 4 Marketing.
341 You will participate m System marketing programs, including the Directory, if any, the
Reservation System, and guest loyalty programs You will obtain and maintain the computer and
communications service and equipment we specify to participate in the Reservation System
You will comply with our rules and standards for participation, and will honor reservations and
commitments to guests and travel industry participants You authorize us to offer and sell
reservations for rooms and services al the Facility according to the rules of participation and
System Standards You may implement, at your option and expense, your own local advertising
Your advertising materials must use the Marks correctly, and must comply with System
Standards or be approved in writing by us prior to publication You will stop using any non-
conforming, out-dated or misleading advertising matenals if we so request
342 You may participate in any regional marketing, training or management alliance or
cooperative of Chain franchisees formed to serve the Chain Facilities in your area We may
assist the cooperative with collecting contributions You may be excluded from cooperative
programs and benefits if you do not participate in all cooperative programs according to their
terms, including making payments and contributions when due
343 The Facility must participate in all mandatory Internet and distribution marketing
activities and programs in accordance with the System Standards Manual, including any
arrangements we make with third party distribution channels You must provide us with
information about the Facility and use our approved photographer for taking photographs of the
Facility for posting on the Chain Websites, third party travel websites and various marketing
media The content you provide us or use yourself for any Internet or distribution marketing
activities must be true, correct and accurate, and you will promptly notify us in writing, in
accordance with our processes that are then in effect, when any correction to the content
becomes necessary You must promptly modify at our request the content of any Internet or
distribution marketing materials for the Facility you use, authorize, display or provide to
conform to System Standards You will disconunue any Internet or distribution marketing
activities that conflict, in our reasonable discretion, with Chain-wide Internet or distribution
marketing activities You must honor the terms of any participation agreement you sign for
Intemet or distribution marketing activities You will pay when due any fees, commissions,
charges and reimbursements relating to Internet or distribution marketing activities (1) in which
you agree to participate, or (11) that we designate as mandatory on a Chain-wide basis We may
suspend the Facility’s particypation in Internet and/or distribution marketing activities if you
default under this Agreement
344 You will participate in the Wyndham Rewards program or any successor guest rewards
or loyalty program we determine 1s appropriate and pay the Loyalty Program Charge associated
with the program as set forth in Schedule C The Wyndham Rewards Front Desk Guide sets
forth additional standards, which you agree to follow The Front Desk Guide, including fees
assessed and reimbursements rates, may be revised by us or our affiliates al any me upon thirty
(30) days’ prior notice
3
HAW TRANSI ER
Qu?
WHRHSF_0000006
Exhibit A.
3 5 Governmental Matters. You will obtain as and when needed all governmental permits,
licenses and consents required by law to construct, acquire, renovate, operate and maintain the
Facility and to offer all services you advertise or promote You will pay when due or properly
contest all federal, state and local payroll, withholding, unemployment, beverage, permit, license,
property, ad valorem and other taxes, assessments, fees, charges, penalties and interest, and will
file when due all governmental returns, notices and other filings You will comply with all
applicable federal, state and local laws, regulations and orders applicable to you and/or the
Facility, including those combating terrorism such as the USA Patriot Act and Executive
Order 13224
3 6 Financial Books & Records; Audits.
361 The Facility’s transactions must be timely and accurately recorded in accounting books
and records prepared on an accrual basis compliant with generally accepted accounting
principles of the United States (“GAAP”) and consistent with the most recent edition of the
Uniform System of Accounts for the Lodging Industry published by the American Hotel &
Motel Association, as modified by this Agreement and System Standards You acknowledge
that your accurate accounting for and reporting of Gross Room Revenues 1s a material obligation
you accept under this Agreement
362 Upon our request, you will send to us copies of financial statements, tax returns, and other
records relating to the Facility for the applicable accounting period that we require under this
Agreement and System Standards We may notify you of a date on which we propose to audit the
Facility’s books and records at the Facility You will be deemed to confirm our proposed date unless
you follow the instructions with the audit notice for changing the date You need to inform us
where the books and records will be produced You need to produce for our auditors at the
confirmed time and place for the audit the books, records, tax retums and financial statements for
the Facility We may also perform an audit of the Facility’s books and records without advance
notice Your staff must cooperate with and assist our auditors to perform any audit we conduct
363 We will notify you in writing if you default under this Agreement because (1) you do not cure
a violation of Section 362 within 30 days afer the date of the initial audit, (11) you cancel two or
more previously scheduled audits, (1) you refuse to admit our auditors during normal business
hours at the place where you maintain the Facility’s books and records, or refuse to produce the
books and records at the audit or send them to us as required under this Agreement and System
Standards for the applicable accounting periods, (1v) our audit determines that the books and records
you produced are incomplete or show evidence of tampering or violation of generally accepted
intemal control procedures, or (v) our
Preview
FILED 2/6/2023 9:31 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Margaret Thomas DEPUTY CAUSE NO. DC-21-04901 TONY EVANS, SR., and ARETHA EVANS, § IN THE DISTRICT COURT OF individually and on behalf of their minor son, § T.E., deceased, and DEON WILLIAMS. § Plaintiffs, vs. DALLAS COUNTY, TEXAS TASACOM REAL ESTATE, LLC d/b/a HAWTHORN SUITES DALLAS LOVE FIELD, HAWTHORN SUITES FRANCHISING, INC., WYNDHAM HOTELS & RESORTS, INC., MOHAMMAD SADIQ NOSHAHI, DIAMOND STAFFING SERVICES, LLC, WYNDHAM HOTEL GROUP, LLC, 162" JUDICIAL DISTRICT TASACOM TECHNOLOGIES, INC., SANJEEV JAIN, and MMAROOFUL CHOUDHURY, Defendants. DEFENDANT WYNDHAM HOTELS & RESORTS, INC., WYNDHAM HOTEL GROUP, LLC, AND HAWTHORN SUITES FRANCHISING, INC.’S RESPONSE IN OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL Defendants Wyndham Hotels & Resorts, Inc. (“WHR”), Wyndham Hotel Group, LLC (“WHG”), and Hawthorn Suites Franchising, Inc. (“HSF”) (collectively, the “Wyndham Defendants”), by and through their undersigned counsel, submit this response in opposition to Plaintiffs’ motion to compel (the “Motion”), and in support thereof respectfully state as follows: I INTRODUCTION Tasacom Real Estate, LLC (“Tasacom”) owns and operates a hotel located at 7900 Brookriver Drive, Dallas, Texas 75347 (“Tasacom Hotel”). Tasacom licensed the Hawthorn Suites® trademarks and proprietary methodology from HSF pursuant to a typical franchise agreement. See generally Franchise Agreement, attached as Exhibit A. In April 2021, as alleged in the Sixth Amended Petition (the “Petition”), Deon Williams and T.E. (“Plaintiffs”) suffered gunshot wounds while on the premises of the Tasacom Hotel. T.E. died shortly after. There is no general duty to prevent third-party crimes, except in limited circumstances like premises liability. The threshold liability question, therefore, is whether any particular defendant exercised the “control” necessary to give rise to premises liability duties. Plaintiffs have now served 269 discovery requests on the Wyndham Defendants and, in response, the Wyndham Defendants have produced thousands of pages of documents showing that none of the Wyndham Defendants owned, operated, employed persons working at, or otherwise controlled the day-to-day operations of the Tasacom Hotel. HSF merely had a typical franchise relationship, which—as a matter of law—does not give rise to premises liability duties. See, e.g., DoubleTree Hotels Corp. v. Person, 122 §.W.3d 917, 919 (Tex. App.—Corpus Christi 2003, no pet.) (reversing a default judgment against a hotel brand franchisor in a premises liability case, recognizing that “setting general minimum operational standards,” combined with retaining the right to conduct “inspections” and “terminate” a franchise agreement for noncompliance, does not establish a cognizable duty by the franchisor, even where the franchisor fails to appear). The Motion seeks an order compelling wide-ranging discovery that is irrelevant to any cognizable theory of liability, including discovery about hotels and franchisees that are not at issue in this case. In arguing that the discovery sought is relevant, Plaintiffs cobble together inapposite case law outside of the franchise context, without ever citing a Texas appellate decision on franchisor liability. That is because Texas appellate courts consistently reject the theories liability that Plaintiffs contend make the discovery sought relevant. WYNDHAM DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL Plaintiffs’ pursuit of this patently overbroad, irrelevant material amounts to an improper fishing expedition that apparently is aimed at forcing the Wyndham Defendants to incur legal expenses needlessly, not at advancing any viable legal theory. See, e.g., Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995) (“The request in this case, however, is not close; it is well outside the bounds of proper discovery. It is not merely an impermissible fishing expedition; it is an effort to dredge the lake in hopes of finding a fish.”). The Wyndham Defendants—consistent with unanimous, well-established Texas law— respectfully request that Plaintiffs’ Motion be denied. IL. BACKGROUND WHR is the ultimate parent company of several hotel brand franchisors, including HSF, the Hawthorn Suites® franchisor. WHG is a WHR subsidiary as well. Per the Franchise Agreement between HSF and Tasacom, HSF licensed the Hawthorn Suites® trademarks and proprietary methodology to Tasacom for the Tasacom Hotel. See Franchise Agreement §§ 1, 15. In exchange, Tasacom agreed to pay certain fees and follow the Hawthorn Suites® brand standards, as reflected in the Hawthorn Suites® Standards of Operation and Design Manual (the “Standards Manual”). See, e.g., Franchise Agreement §§ 4.7, 7.1.1. Consistent with a typical franchise relationship, HSF requires franchisees to follow the Hawthorn Suites® brand standards “to protect the [Hawthorn Suites®] System and the [Hawthorn Suites®] Marks, and not to control the day-to-day operations of [any franchised] business.” See Franchise Agreement § 4.7. Indeed, the Franchise Agreement makes clear: You [Tasacom] will exercise full and complete control over and have full responsibility for your contracts, daily operations, labor relations, employment practices and policies, including but not limited to the recruitment, selection, hiring, disciplining, firing, compensation, work rules and schedules of your employees. WYNDHAM DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL Franchise Agreement § 16.1. HSF has no right to seize control over, or otherwise stop operations at, the Tasacom Hotel even in the event of a default under the Franchise Agreement. Rather, a breach of the Franchise Agreement simply entitles HSF, in certain circumstances, to terminate Tasacom’s license to use the Hawthorn Suites® marks, along with its right to participate in the Hawthorn Suites® franchise system. See Franchise Agreement §§ 11.1, 11.2. Put simply, the Wyndham Defendants did not (and does not now) own, operate, employ persons at, or otherwise control the day-to-day operations of the Tasacom Hotel. Plaintiffs suffered gunshot wounds while on the premises of the Tasacom Hotel. The Petition seeks to hold the Wyndham Defendants liable based on the franchise relationship between HSF and Tasacom. Plaintiffs have propounded 269 discovery requests on the Wyndham Defendants. The Wyndham Defendants have produced thousands of pages of documents, above and beyond what could be arguably relevant to this case. But, where Plaintiffs have sought discovery that strays well beyond the scope of what is reasonably relevant in this case (e.g., hotels that are not at issue, nonparty franchisees that are not at issue, etc.), the Wyndham Defendants have appropriately objected. Leading up to this Motion, counsel for the Wyndham Defendants attempted to meet-and- confer and asked Plaintiffs to identify any legal authority that would counter their relevance objections. Counsel for Plaintiffs acknowledged that “there is case law [that] is supportive” of the Wyndham Defendants’ positions but claimed that there was contrary authority as well. See E-mail from Emily Taylor (Plaintiffs) to Jason Hopkins (Wyndham), Jan. 5, 2023, 6:31AM, attached as Exhibit B. Counsel for the Wyndham Defendants asked Plaintiffs to identify any such contrary authority so that the Wyndham Defendants could consider it. See E-mail from Christopher Donovan (Wyndham) to Emily Taylor (Plaintiffs), Jan. 5, 2023, 7:11AM (‘Yes, we would like to WYNDHAM DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL confer. As part of that, would you mind sending us the caselaw (or even just the citations) you are referencing? We'd like to take that into consideration in evaluating if/where we can bridge the gap on some of these issues.”). Plaintiffs refused, stating that “Plaintiffs are not doing your legal research for you at this stage.” See E-mail from Aubrey “Nick” Pittman (Plaintiffs) to Christopher Donovan (Wyndham), January 5, 2023, 7:44AM. Plaintiffs filed their Motion without first identifying which particular requests were in dispute. By all appearances, Plaintiffs had no intention of meaningfully conferring about the issues raised in their Motion. The Motion, despite being over twenty pages long, argues in broad, sweeping generalities. Plaintiffs make no effort to defend the propriety of any particular request or address (or, in many instances, even acknowledge) the Wyndham Defendants’ objections to those requests. The Motion also ignores that, for several requests, the Wyndham Defendants have already produced responsive material. Til. LEGAL STANDARD Discovery is limited to that which is relevant and not privileged. See Tex. R. Civ. P. 192.3(a). Discovery requests must be “reasonably tailored to include only relevant matters.” Jn re CSX Corp., 124 S.W.3d 149, 152 (Tex. 2003). It is an abuse of discretion to compel discovery that is not material to an adequately pled, cognizable theory of liability. See In re Methodist Primary Care Group, 14-17-00299-CV, 2017 WL 3480292, at *2-3 (Tex. App.—Houston [14th Dist.] Aug. 14, 2017, no pet.) (per curiam) (finding that discovery order was an abuse of discretion because it compelled discovery that was not supported by well-pled claims); Jn re Compton, 11-20-00154- CV, 2020 WL 4519562, at *5 (Tex. App.—Eastland Aug. 6, 2020, no pet.) (“We hold that, because Real Parties in Interest have not adequately pleaded an underlying cause of action, Judge Cashon WYNDHAM DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL abused his discretion when he ordered the production . . . and that Relators do not have an adequate remedy by appeal.”); Al Parker Buick Co. v. Touchy, 788 S.W.2d 129, 131 (Tex. App.—Houston [Ist Dist.] 1990, no writ). That is true even where burden is slight or nonexistent. In re Allstate County Mut. Ins. Co., 227 S.W.3d 667, 670 (Tex. 2007). There is no adequate remedy on appeal for an overbroad discovery order, or where an order compels discovery that is clearly harassing. See, e.g., In re CSX Corp., 124 S.W.3d 149, 153 (Tex. 2003); In re Walmart, Inc., 08-20-00191- CV, 2021 WL 1153033, at *8 (Tex. App.—El Paso Mar. 26, 2021, no pet. h.). IV. ARGUMENTS & AUTHORITIES Relevance in discovery, necessarily, is measured against the well-pled allegations and legally cognizable claims asserted in the pleadings. See In re Citizens Supporting Metro Sols., Inc., 14-07-00190-CV, 2007 WL 4277850, at *3 (Tex. App.—Houston [14th Dist.] Oct. 18, 2007, no pet.) (“The scope of discovery is measured by the live pleadings regarding the pending claims.”); see also In re Compton, 11-20-00154-CV, 2020 WL 4519562, at *3 (Tex. App.—Eastland Aug. 6, 2020, no pet.) (“To determine whether a discovery request seeks information that will aid the dispute’s resolution, we look to the pleadings to determine the nature of the dispute.”). In other words, discovery requests cannot be based on unviable legal theories. See In re StarFlite Mgmt. Group, Inc., 162 S.W.3d 409, 413 (Tex. App.—Beaumont 2005, no pet.) (holding that, for material to be discoverable, there must be a properly pled cause of action that makes it relevant). Here, Plaintiffs misstate Texas law on franchisor liability, and then argue that Plaintiffs are entitled to conduct far-reaching discovery based on their unviable, inapplicable legal theories. Evaluating Plaintiffs’ requests under applicable Texas law on franchisor liability, granting Plaintiffs’ Motion would constitute an abuse of discretion. See Walmart, 2021 WL 1153033, at *9 (vacating discovery order because it permitted “the discovery of information that is irrelevant WYNDHAM DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL under the [] pleaded theories,” noting that the trial court “essentially authorized a fishing expedition”); Compton, 2020 WL 4519562 at *5 (holding that district judge “abused his discretion when he ordered production” because the plaintiffs had “not adequately pleaded an underlying cause of action”); In re Hochheim Prairie Cas. Ins. Co., 09-19-00158-CV, 2019 WL 3330593, at *2 (Tex. App.—Beaumont July 25, 2019, no pet.). A. The Wyndham Defendants have already produced materials that, arguably, are relevant to assessing any duty (the Wyndham Defendants did not owe one). Plaintiffs identify twenty-six requests for production and five interrogatories that, according to Plaintiffs, are relevant to duty and foreseeability. See Motion at 10-16. As explained below, the Wyndham Defendants have already produced the materials that are reasonably relevant to duty and foreseeability. The Motion should be denied. 1 The Wyndham Defendants have already produced materials that, arguably, are relevant to showing whether the Wyndham Defendants controlled the Tasacom Hotel (they did not). Plaintiffs misstate the law on the duty of franchisors to prevent third-party crimes on franchise premises. The Motion cites cases from other contexts, incorrectly claim those cases pertain to franchising, and then argues that this inapposite authority justifies virtually limitless discovery. Plaintiffs’ arguments lack merit. For starters, under Texas law, there is no duty to prevent third-party crimes except in limited circumstances, such as premises liability. See, e.g., Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998) (“As a rule, a person has no legal duty to protect another from the criminal acts of a third person. An exception is that one who controls premises does have a duty to use ordinary care to protect invitees . . . .” (internal quotations and alterations omitted)); Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). “To establish premises liability, a plaintiff must show that the defendant had control over and responsibility for the premises.” Cohen v. WYNDHAM DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL Landry’s Inc., 442 §.W.3d 818, 824 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) (citing Mayer v. Willowbrook Plaza Ltd. P’ship, 278 S.W.3d 901, 909 (Tex. App.—Houston [14th Dist.] 2009, no pet.)). “Control can be demonstrated by ownership, occupation, management, or possession of the premises,” and it can be established by “either a contractual agreement expressly assigning the right of control or an actual exercise of control.” Jd. (citing Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002)). But, for a duty to arise, the “control must relate to the condition or the activity that caused the injury.” /d. Requiring franchisees, by contract, to follow brand standards in their operations is not, as a matter of blackletter Texas law, tantamount to “control.” See, e.g., Risner v. McDonald's Corp., 18 S.W.3d 903, 906 (Tex. App.—Beaumont 2000, pet. denied) (holding that, even where the franchisor owned the building in which the franchisee operates, a restaurant franchisor lacked the requisite control, as a matter of law, to support a premises liability claim); Smith v. Foodmaker, Inc., 928 S.W.2d 683, 687 (Tex. App.—Fort Worth 1996, no writ) (recognizing that requiring a “franchisee to follow ‘standards of operation’” does not amount to the type or degree of control necessary to hold a franchisor liable under a premises theory). Relatedly, franchisors do not owe a duty to “enforce” brand standards by terminating noncompliant franchisees. See, e.g., Fitz v. Days Inns Worldwide, Inc., 147 $.W.3d 467, 473-74 (Tex. App.—San Antonio 2004, pet. denied) (rejecting argument that the franchisor owed a duty to “enforce compliance” with its brand standards, explaining that the right to inspect a franchisee’s operations and terminate the franchisee’s license to use the franchisor’s trademarks does not amount to the type or degree of control that could trigger such a duty, as a matter of law). The relevant inquiry in this case, therefore, centers on whether the Wyndham Defendants controlled the premises of the Tasacom Hotel for purposes of preventing third-party crimes (they WYNDHAM DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL did not). See, e.g., DoubleTree Hotels Corp. v. Person, 122 S.W.3d 917, 919 (Tex. App.—Corpus Christi 2003, no pet.) (reversing a default judgment against a hotel brand franchisor in a premises liability case, recognizing that “setting general minimum operational standards,” combined with retaining the right to conduct “inspections” and “terminate a franchisee’s operations” for noncompliance, does not establish a cognizable duty by the franchisor, even where the franchisor failed to answer the lawsuit). The Wyndham Defendants have already produced the documents that govern the franchise relationship between HSF and Tasacom (i.e., the Franchise Agreement and the Standards Manual), which the Wyndham Defendants noted in response to several requests.' Plaintiffs’ requests otherwise do not seek documents regarding control over the Tasacom Hotel’s premises. Instead, they seek materials about the entire franchise system as a whole,” other hotels that are not at issue,? and other franchisees that are not at issue.‘ Other requests seek patently irrelevant information (e.g., insurance requirements, communications with industry associations, all communications with Tasacom without limitation). 2. The Wyndham Defendants have already produced materials that, arguably, are relevant to the foreseeability of the third-party crimes committed against Williams and T.E. at the Tasacom Hotel. In Timberwalk, the Texas Supreme Court explained that prior third-party crimes can be used to establish the foreseeability of future crimes for purposes of premises liability, but only in | See, e.g., WHG’s Responses to Plaintiffs’ First Set of RFPs (Exhibit A to Plaintiff's Motion) at RFP Nos. 35, 36, 40. ? See, e.g., Exhibit A to Plaintiffs’ Motion at RFP Nos. 5, 15, 30, 40, and 41; WHR’s Responses to Plaintiffs’ First Set of Interrogatories (Exhibit D to Plaintiffs’ Motion) at Interrogatory Nos. 1, 2, 3, 4, and 6. 5 See, e.g., Exhibit D to Plaintiffs’ Motion at Interrogatory Nos. 1 and 2. 4 See, e.g., Exhibit A to Plaintiffs’ Motion at RFP Nos. 7, 8, 9, 10, 11, 12, and 42; Exhibit D to Plaintiffs’ Motion to Interrogatory Nos. 1 and 2. 5 See, e.g., Exhibit A to Plaintiffs’ Motion at RFP Nos. 12, 13, 14, 50. WYNDHAM DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL limited circumstances. 972 S.W.2d at 757. “In determining whether the occurrence of certain criminal conduct on a landowner's property should have been foreseen, courts should consider whether any criminal conduct previously occurred on or near the property, how recently it occurred, how often it occurred, how similar the conduct was to the conduct on the property, and what publicity was given the occurrences to indicate that the landowner knew or should have known about them.” /d.; Wang v. Trea Churchill on the Park, LLC, No. 05-21-00880-CV, 2022 WL 13811953, at *3 (Tex. App.—Dallas Oct. 24, 2022, pet. denied). Following the Texas Supreme Court’s guidance, the Wyndham Defendants—after conducting a reasonably diligent search—have produced communications reflecting allegations of potential crimes involving firearms at the Tasacom Hotel for the three years prior to the incident at issue.° Beyond that, Plaintiffs seek documents relating to alleged crimes at different hotels,’ crimes at hotels operated by different franchisees,* and crimes that are dissimilar to the shooting at issue (e.g., prostitution),’ including allegations of crime occurring after the incident in question. Such materials are irrelevant to whether this shooting at this hotel was foreseeable at the time of the incident. See Timberwalk, 972 S.W.2d at 757 (“[M]erely because several crimes have occurred at a particular ATM located in a high-crime area does not render it more likely that future crimes will occur at every ATM the bank owns. . . . [T]he stabbing of a guest at an apartment complex was not foreseeable from four prior incidents of vandalism and theft of a refrigerator from a vacant apartment.”). ® See, e.g., Exhibit A to Plaintiffs’ Motion at RFP Nos. 27, 29, 32, 38, 46, and 50; HSF’s Responses to Plaintiffs’ First Set of RFPs, attached as Exhibit C at RFP Nos. 5, 15, and 43. ” See, e.g., Exhibit D to Plaintiffs’ Motion at Interrogatory Nos. 1 and 2. 8 See, e.g., Exhibit A to Plaintiffs’ Motion at RFP Nos. 8. ° See, e.g., Exhibit A to Plaintiffs’ Motion at RFP Nos. 27, 28, 29, and 46; Exhibit D to Plaintiffs’ Motion at Interrogatory Nos. | and 2. WYNDHAM DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL 10 Plaintiffs urge the Court to disregard Timberwalk, citing the Texas Supreme Court’s later decision in Del Lago Partners, Inc. v. Smith, 307 8.W.3d 762, 768 (Tex. 2010). See Motion at 8- 9. In Del Lago, a “fight occurred in a bar at closing time following ninety minutes of heated altercations among intoxicated patrons.” /d. The Texas Supreme Court recognized that, in addition to the limited circumstances set forth in Timberwalk, “criminal misconduct is sometimes foreseeable because of immediately preceding conduct.” /d. at 769. But the Texas Supreme Court reiterated that Timberwalk still controls the analysis “in situations where the premises owner has no direct knowledge that criminal conduct is imminent, but the owner may nevertheless have a duty protect invitees because past criminal conduct made similar conduct in the future foreseeable.” /d. at 768. Here, Plaintiffs seek discovery regarding prior unrelated criminal conduct (not about the circumstances at the Tasacom Hotel immediately preceding the incident at issue). Accordingly, the limitations set forth in Timberwalk control. In short, granting Plaintiffs’ Motion and compelling the far-reaching discovery sought would constitute a clear abuse of discretion. See, e.g., CSX, 124 S.W.3d at 152 (“Discovery orders requiring document production from an unreasonably long time period or from distant and unrelated locales are impermissibly overbroad.”); Dillard Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995) (“We hold that a twenty-state search for documents over a five-year period is overly broad as a matter of law.”); K Mart Corp. v. Sanderson, 937 S.W.2s 429, 431 (Tex. 1996) (“The likelihood that criminal conduct on the parking lot of a K Mart store or other property owned by Weingarten in El Paso or Amarillo as long ago as 1989, or outside Texas as long ago as 1986, will have even a miniscule bearing on this case is far too small to justify discovery.”); In re Ashland Oil, No. 05-98-00708-CV, 1998 WL 351293, at *4 (Tex. App.—Dallas July 2, 1998, no pet.) WYNDHAM DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL 11 (“Activity at other plants and within other divisions does not qualify as a substantially similar circumstance to be relevant discovery to support plaintiffs’ claims.”). B. The Wyndham Defendants have already produced the so-called “business relationship documents” that, arguably, are relevant to this dispute. Next, Plaintiffs seek an order compelling the Wyndham Defendants to produce so-called “business relationship documents” in response to six different requests for production, arguing (without explanation) that they are “certainly relevant” to whether the Wyndham Defendants controlled the Tasacom Hotel. See Motion at 17-18. Again, the Wyndham Defendants have already produced the materials governing HSF’s franchise relationship with Tasacom—namely, the Franchise Agreement and the Standards Manual. Otherwise, Plaintiffs seek documents relating to the relationships between and among the Wyndham Defendants. See Motion at 17-18. Even though such materials are irrelevant to whether the Wyndham Defendants controlled the Tasacom Hotel, the Wyndham Defendants have already produced materials showing that WHR is the ultimate parent company of WHG and HSF, and the Wyndham Defendants have repeatedly noted that WHR is a publicly traded company whose SEC filings are publicly available. Insofar as Plaintiffs seek additional documents, it is not clear. In this regard, the Motion should be denied. Cc. Plaintiffs’ request for marketing materials is, on its face, an irrelevant and improper fishing expedition. Plaintiffs seek broad discovery regarding the Wyndham Defendants’ marketing efforts in the Dallas-Fort Worth Metroplex. See Motion at 18-19. The Wyndham Defendants objected, noting (among other things) that: [I]nsofar as Plaintiffs contend that the requested documents relate to their purported DTPA claims, Plaintiffs do not allege that they rented rooms at the Tasacom Hotel (much less that they rented rooms from [the Wyndham Defendants], which did not own or operate the hotel), making the requested material irrelevant to any cognizable DTPA claim. See, e.g., Amstadt v. U.S. Brass Corp., 919 WYNDHAM DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL 12 S.W.2d 644, 650 (Tex. 1996); Chavez v. Ford Motor Co., EP-18- CV-109-KC, 2018 WL 6190601, at *3 (W.D. Tex. Sept. 26, 2018) (recognizing that a defendant cannot be held liable under the DTPA unless it “directly transacted with the plaintiff-consumer’). [The Wyndham Defendants] further object[] to this request because it represents an impermissible fishing expedition aimed at harassing WHG. Indeed, insofar as Plaintiffs can claim in good faith that a statement allegedly made in violation of the DTPA caused injuries, they should be able to identify any such statements from the outset without the sweeping discovery sought. See, e.g., Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 481 (Tex. 1995) (recognizing that, under the DTPA, the alleged deceptive trade practice must be a “producing cause” of the plaintiff's injury, which “requires some evidence that the defendant’s act or omission was the cause in fact of the plaintiff's injury”).'° In response, the Motion offers no basis for such far-reaching discovery under the Texas Deceptive Trade Practices Act, arguing instead (without explanation) it is relevant to Plaintiffs’ so-called “misrepresentation” claim. See Motion at 16; Petition at § 122-27. But “ “ ‘misrepresentation” is not a cognizable claim under Texas law. “Negligent misrepresentation” is a cognizable claim, but it clearly does not apply in this case. See, e.g., Zaan, LLC v. Sangani, No. 05-12-00423-CV, 2015 WL 2398652, at *6 (Tex. App.—Dallas May 20, 2015, pet. denied) (“The elements of negligent misrepresentation are: (1) a representation is made by a defendant in the course of his business, or in a transaction in which he has a pecuniary interest; (2) the defendant supplies ‘false information’ for the guidance of others in their business; (3) the defendant did not exercise reasonable care or competence in obtaining or communicating the information; and (4) the plaintiff suffers pecuniary loss by justifiably relying on the representation.” (emphasis added)). 1 See, e.g., Exhibit A to Plaintiffs’ Motion at RFP 16; Exhibit B to Plaintiffs’ Motion at RFP 16; Exhibit C to Plaintiffs’ Motion at RFP 16. WYNDHAM DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL 13 Put simply, Plaintiffs’ requests for marketing materials are untethered to any viable legal theory. Plaintiffs’ pursuit of this material is a clear improper fishing expedition. The Court should deny Plaintiffs’ Motion with respect to such information. D. Plaintiffs’ “conspiracy” claim is not well pled and provides no basis for discovery. Plaintiffs seek broad discovery regarding Defendants’ net worth and the minimum insurance requirements set forth in the Franchise Agreement. See Motion at 19-20. The Wyndham Defendants objected based on relevance and because Plaintiffs are obligated under Section 41.0115 of the Texas Civil Practice & Remedies Code to seek leave from the Court prior to conducting discovery into a defendant’s net worth, which Plaintiffs failed to do.'! In the Motion, Plaintiffs argue that such material is relevant to Plaintiffs oe conspiracy” claim, which is based on the notion that “all the defendants” conspired to “permit Tasacom to operate the hotel despite being undercapitalized.” See Motion at 19-20. But conspiracy is a derivative tort. See, e.g., W. Fork Advisors, LLC y. SunGard Consulting Services, LLC, 437 S.W.3d 917, 920 (Tex. App.—Dallas 2014, pet. denied) (“Conspiracy is a derivative tort because ‘a defendant’s liability for conspiracy depends on participation in some underlying tort for which the plaintiff seeks to hold at least one of the named defendants liable.”” (quoting Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex. 1996)). Where there is no underlying tort, there can be no viable conspiracy claim. See, e.g., Chu v. Hong, 249 S.W.3d 441, 444 (Tex. 2008). Neither the Motion nor the Petition articulate a conceivable underlying tort based on the notion that Tasacom was “undercapitalized.” Motion at 20. Therefore, again, Plaintiffs’ discovery requests are unsupported by any viable theory of liability. The Motion should be denied. __ "| See, e.g., Exhibit A to Plaintiffs’ Motion at RFP Nos. 6 and 13; Exhibit B to Plaintiffs’ Motion at RFP Nos. 6 and 13; Exhibit C to Plaintiffs’ Motion at RFP Nos. 6 and 13. WYNDHAM DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL 14 V. CONCLUSION & REQUEST FOR RELIEF For the foregoing reasons, the Wyndham Defendants respectfully request that the Court DENY Plaintiffs’ Motion and grant the Wyndham Defendants any relief to which they may be justly entitled. Date: February 6, 2023 Respectfully submitted, DLA PIPER LLP (US) /s/_ Jason Hopkins Jason Hopkins State Bar No. 24059969 jason.hopkins@dlapiper.com 1900 N. Pearl St. Suite 2200 Dallas, Texas 75201 T: 214.743.4500 F: 214.743.4545 Christopher B. Donovan State Bar No. 24097614 christopher.b.donovan@dlapiper.com 845 Texas Avenue, Suite 3800 Houston, Texas 77002 T: 713.425.8400 F: 713.425.8401 Counsel for Defendants Wyndham Hotels & Resorts, Inc., Wyndham Hotel Group, LLC, and Hawthorn Suites Franchising, Inc. WYNDHAM DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL 15 CERTIFICATE OF SERVICE I hereby certify that, on February 6, 2023, a true and correct copy of the foregoing document was served on counsel of record in accordance with the Texas Rules of Civil Procedure via the court’s electronic filing system. /s/ Christopher B. Donovan Christopher B. Donovan WYNDHAM DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL 16 Exhibit A. Location Dallas, Texas Entity No 11457-06 Unit No #30808 HAWTHORN SUITES FRANCHISING, INC. FRANCHISE AGREEMENT THIS FRANCHISE AGREEMENT (“Agreement”), dated Feb da ,wih,is between HAWTHORN SUITES FRANCHISING, INC., a Georgia corporation (“we”, “our”, or “us”), and TASACOM REAL ESTATE LLC, a Texas limited lability company (“you”) The defimtrons of capitalized terms are found in Appendix A_ In consideration of the following mutual promises, the parties agree as follows 1. Franchise. We have the exclusive right to franchise to you the distinctive “Hawthorn Suites by Wyndham” System for providing transient guest lodging services We grant to you and you accept the Franchise, effective and beginning on the Opening Date and ending on the earltest to occur of the Term’s expiration or a Termination The Franchise ts effective only at the Location and may not be transferred or relocated You will call the Facility a “Hawthorn Suites by Wyndham” You may adopt additional or secondary designations for the Facility with our prior written consent, which we may withhold, condition, or withdraw on written notice in our sole discretion You shall not affiliate or identify the Facility with another franchise system, reservation system, brand, cooperative or registered mark during the Term 2. Protected Territory. We will not own, operate, lease, manage, or license any party but you to operate a Chain Facility in the “Protected Terntory”, defined below, while this Agreement 1s in effect We may own, operate, lease, manage, franchise or license anyone to operate any Chain Facility located anywhere outside the Protected Terntory without any restnction or obligation to you We may grant Protected Territories for other Chain Facilities that overlap your Protected Terntory While this Agreement 1s in effect, neither you nor your officers, directors, general partners or owners of 25% or more of your Equity Interests, may own, operate, lease, manage or franchise any time share resort, vacation club, residence club, fractional ownership residence, condomimum/apartment easing or rental business, or the like, for any facility or business that shares directly or indirectly, common areas, amenities, recreation facilities, services, supplies or support activities with the Facility You will use any information obtained through the Reservation System to refer guests, directly or indirectly, only to Chain Facilities This Section does not apply to any Chain Facility located in the Protected Terntory on the Effective Date, which we may renew, relicense, allow to expand, or replace with a replacement Facility located within the same trading area having not more than 120% of the guest rooms of the replaced Chain Facility if its franchise with us terminates or 15 not renewed The Protected Terntory fairly represents the Facihity's trading area, and you acknowledge that There are no express or implied terntonal nghts or agreements between the parties except as stated in this Section You urevocably watve any nght to seek or obtain the benefits of any policy we now follow or may in the future follow to notify you about proposed Chain Facilities in the general area of the Facility, solicit information about the effect of the proposed Chain Facility on the revenue or occupancy of the Facility or decide whether to add the proposed Chain Facility to the Chain based on the potential effect of the proposed Chain Facility on the Facility or its performance You further acknowledge and agree that notwithstanding the 1 HAW IRANSIER Q2/17 WHRHSF_0000004 Exhibit A. foregomg, we may operate, lease, manage, or Itcense any other party to operate a Chain Facility in the Protected Terntory beginning (a) six months pnor to the expiration of this Agreement, or (b) as of the date that a date for the premature termination of this Agreement has been confirmed in wnting by us The covenants in this Section are mutually dependent, if you breach this Section, your Protected Territory will be the Location only The Protected Terntory means an area within a circle created by a two (2) mile radius whose center point is the front door of the Facility 3. Your Improvement and Operating Obligations. 3.1 Pre-Opening Improvements. You must select, acquire, construct and/or renovate the Facility as provided in Schedule D 32 Operation. You will operate and maintain the Facility continuously afier the Opening Date on a year-round basis as required by System Standards and offer transient guest lodging and other related services of the Facility (including those specified on Schedule B) to the public in comphance with all federal, state, and local laws, regulations and ordinances as well as System Standards You will keep the Facility in a clean, neat, and sanitary condition You will clean, repair, replace, renovate, refurbish, paint, and redecorate the Facility and 1ts FF&E as and when needed to comply with System Standards The Facility will be managed by either a management company or an individual manager with significant training and experience in general management of similar lodging facilities The Facility will accept payment from guests by all credit and debit cards we designate in the System Standards Manual The Facility will follow standard industry practices for safeguarding cardholder information, applicable laws and regulations, and such other requirements as we may include in the System Standards Manual or as we may otherwise communicate from time to ume for such purpose You may add to or discontinue the amenities, services and facilities described in Schedule B, or lease or subcontract any service or portion of the Facility, only with our prior written consent which we will not unreasonably withhold or delay. Your front desk operation, telephone system, parking lot, swimming pool and other guest service factliies may not be shared with or used by guests of another lodging or housing facility You acknowledge that any breach of System Standards for the Facility, its guest amenities, and your guest service performance ts a material breach of this Agreement Upon our reasonable request, you will provide us with then-current copies of the documents evidencing your ownership of, or right to possess, the Facility and/or the real property upon which the Facility is located, and a complete and accurate list of all of your owners and their Equity Interests 33 Traming. You (or a person with executive authority if you are an entity) and the Facility’s general manager (or other representative who exercises day to day operational authonty) will attend the training programs described in Sectton 4 1 we designate as mandatory for franchisees and general managers, respectively You will train or cause the training of all Facility personnel as and when required by System Standards and this Agreement You will pay for all travel, lodging, meals and compensation expenses of the people you send for training programs, the cost of traiming materials and other reasonable charges we may impose for training under Section 4 1, and all travel, lodging, meal and facility and equipment rental expenses of our representatives if training 1s provided at the Facility HAW TRANSFER Qa WHRHSF_0000005 Exhibit A. 3 4 Marketing. 341 You will participate m System marketing programs, including the Directory, if any, the Reservation System, and guest loyalty programs You will obtain and maintain the computer and communications service and equipment we specify to participate in the Reservation System You will comply with our rules and standards for participation, and will honor reservations and commitments to guests and travel industry participants You authorize us to offer and sell reservations for rooms and services al the Facility according to the rules of participation and System Standards You may implement, at your option and expense, your own local advertising Your advertising materials must use the Marks correctly, and must comply with System Standards or be approved in writing by us prior to publication You will stop using any non- conforming, out-dated or misleading advertising matenals if we so request 342 You may participate in any regional marketing, training or management alliance or cooperative of Chain franchisees formed to serve the Chain Facilities in your area We may assist the cooperative with collecting contributions You may be excluded from cooperative programs and benefits if you do not participate in all cooperative programs according to their terms, including making payments and contributions when due 343 The Facility must participate in all mandatory Internet and distribution marketing activities and programs in accordance with the System Standards Manual, including any arrangements we make with third party distribution channels You must provide us with information about the Facility and use our approved photographer for taking photographs of the Facility for posting on the Chain Websites, third party travel websites and various marketing media The content you provide us or use yourself for any Internet or distribution marketing activities must be true, correct and accurate, and you will promptly notify us in writing, in accordance with our processes that are then in effect, when any correction to the content becomes necessary You must promptly modify at our request the content of any Internet or distribution marketing materials for the Facility you use, authorize, display or provide to conform to System Standards You will disconunue any Internet or distribution marketing activities that conflict, in our reasonable discretion, with Chain-wide Internet or distribution marketing activities You must honor the terms of any participation agreement you sign for Intemet or distribution marketing activities You will pay when due any fees, commissions, charges and reimbursements relating to Internet or distribution marketing activities (1) in which you agree to participate, or (11) that we designate as mandatory on a Chain-wide basis We may suspend the Facility’s particypation in Internet and/or distribution marketing activities if you default under this Agreement 344 You will participate in the Wyndham Rewards program or any successor guest rewards or loyalty program we determine 1s appropriate and pay the Loyalty Program Charge associated with the program as set forth in Schedule C The Wyndham Rewards Front Desk Guide sets forth additional standards, which you agree to follow The Front Desk Guide, including fees assessed and reimbursements rates, may be revised by us or our affiliates al any me upon thirty (30) days’ prior notice 3 HAW TRANSI ER Qu? WHRHSF_0000006 Exhibit A. 3 5 Governmental Matters. You will obtain as and when needed all governmental permits, licenses and consents required by law to construct, acquire, renovate, operate and maintain the Facility and to offer all services you advertise or promote You will pay when due or properly contest all federal, state and local payroll, withholding, unemployment, beverage, permit, license, property, ad valorem and other taxes, assessments, fees, charges, penalties and interest, and will file when due all governmental returns, notices and other filings You will comply with all applicable federal, state and local laws, regulations and orders applicable to you and/or the Facility, including those combating terrorism such as the USA Patriot Act and Executive Order 13224 3 6 Financial Books & Records; Audits. 361 The Facility’s transactions must be timely and accurately recorded in accounting books and records prepared on an accrual basis compliant with generally accepted accounting principles of the United States (“GAAP”) and consistent with the most recent edition of the Uniform System of Accounts for the Lodging Industry published by the American Hotel & Motel Association, as modified by this Agreement and System Standards You acknowledge that your accurate accounting for and reporting of Gross Room Revenues 1s a material obligation you accept under this Agreement 362 Upon our request, you will send to us copies of financial statements, tax returns, and other records relating to the Facility for the applicable accounting period that we require under this Agreement and System Standards We may notify you of a date on which we propose to audit the Facility’s books and records at the Facility You will be deemed to confirm our proposed date unless you follow the instructions with the audit notice for changing the date You need to inform us where the books and records will be produced You need to produce for our auditors at the confirmed time and place for the audit the books, records, tax retums and financial statements for the Facility We may also perform an audit of the Facility’s books and records without advance notice Your staff must cooperate with and assist our auditors to perform any audit we conduct 363 We will notify you in writing if you default under this Agreement because (1) you do not cure a violation of Section 362 within 30 days afer the date of the initial audit, (11) you cancel two or more previously scheduled audits, (1) you refuse to admit our auditors during normal business hours at the place where you maintain the Facility’s books and records, or refuse to produce the books and records at the audit or send them to us as required under this Agreement and System Standards for the applicable accounting periods, (1v) our audit determines that the books and records you produced are incomplete or show evidence of tampering or violation of generally accepted intemal control procedures, or (v) our