Preview
FILED
6/23/2023 4:54 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Kellie Juricek DEPUTY
CAUSE NO. DC-21-04901
TONY EVANS, SR., and ARETHA EVANS,
individually and on behalf of their minor son,
T.E., deceased, FAITH TANKSLEY, on behalf IN THE DISTRICT COURT OF
of minor, T.E., III, individually and on behalfof
his father, T.E., deceased, and DEON
WILLIAMS, DALLAS COUNTY, TEXAS
Plaintiffs,
162™ JUDICIAL DISTRICT
ae
TASACOM REAL ESTATE, LLC, et al.,
Defendants.
DEFENDANTS WYNDHAM HOTELS & RESORTS, INC.,
WYNDHAM HOTEL GROUP, LLC, AND HAWTHORN SUITES FRANCHISING,
INC.’S RESPONSE IN OPPOSITION TO PLAINTIFFS’
MOTION FOR DISCOVERY SANCTIONS
Defendants Wyndham Hotels & Resorts, Inc. (“WHRI”’), Wyndham Hotel Group, LLC
(“WHG”), and Hawthorn Suites Franchising, Inc. (“HSF”) (collectively, the “Wyndham
Defendants”), through their undersigned counsel, submit this Response in Opposition to Plaintiffs’
Motion for Discovery Sanctions (the “Motion”), and in support thereof state as follows:
I. INTRODUCTION
This case is ready for summary judgment. The Court previously granted a sixty-day
continuance of the summary judgment hearing to allow Plaintiffs to conduct certain specific
discovery. That discovery is complete. Indeed, the Wyndham Defendants have done everything
the Court previously ordered in connection with continuing the submission of the Wyndham
Defendants’ summary judgment motion. Over and above what the Court ordered, in a futile
attempt to work cooperatively with Plaintiffs, the Wyndham Defendants voluntarily postponed the
submission of their summary judgment motion by an additional three weeks and agreed to
schedule two additional depositions (one of a current Wyndham employee, one of a former
Wyndham employee).
The Motion is about what happened after the Wyndham Defendants agreed to the needless
and dilatory discovery Plaintiffs requested. Specifically, a scheduling conflict arose for one of the
depositions, and the Wyndham Defendants explained that it would need to be rescheduled—
something that happens every day in Dallas without Court involvement. Plaintiffs’ counsel then
manufactured a strategy to continue to avoid a summary judgment ruling in this straightforward
franchise case: they threatened to file a baseless motion for sanctions unless the Wyndham
Defendants consented to a third postponement of the summary judgment hearing. Because the
Wyndham Defendants viewed that as impermissible gamesmanship, they joined Plaintiffs’ counsel
in a request for a status conference with the Court. After the Wyndham Defendants joined in that
request, Plaintiffs’ counsel abruptly withdrew it and—seeking to implement their delay strategy—
filed this Motion instead. The Court should put a stop to the insanity. The Court should deny
Plaintiffs’ Motion and order them to respond to the Wyndham Defendants’ motion for summary
judgment as currently scheduled.
I. BACKGROUND
HSF is the franchisor of the Hawthorn® hotel brand. HSF licensed the Hawthorn® marks
and proprietary methodology to a third party, Defendant Tasacom Real Estate, LLC (““Tasacom’),
pursuant to a franchise agreement for use at Tasacom’s guest lodging facility located in Dallas,
Texas. WHRI is HSF’s ultimate parent company, and WHG is another WHRI subsidiary. While
Plaintiffs’ claims against HSF lack legal merit under blackletter Texas law, Plaintiffs have never
even articulated a Rule 13 basis for bringing suit against WHRI and WHG. See Tex. R. Civ. P. 13
(providing that sanctions are appropriate for the filing of “groundless” pleadings—i.e., pleadings
that have “no basis in law or fact”).
Plaintiffs have propounded more than 250 written discovery requests on the Wyndham
Defendants, and the Wyndham Defendants have produced thousands of pages of documents. At a
hearing on Plaintiffs’ motion to compel on February 13, 2023, Ret. Justice O’Neill, sitting on a
visiting basis, abated discovery as to the Wyndham Defendants pending a ruling on the Wyndham
Defendants’ summary judgment motion, recognizing that Plaintiffs’ claims against them involve
controlling threshold legal questions. See Hearing Transcript at 13:19-23, attached as Exhibit A
(“I will hold ruling on the discovery requirements to the Wyndham entities until the Court has had
a chance to rule on the summary judgment motion.”). Ignoring that ruling, Plaintiffs later renewed
their motion to compel, in part, and requested a continuance. The Wyndham Defendants opposed
because, inter alia, Plaintiffs never identified what open fact questions they intended to address
through additional discovery.
During the hearing on that motion for continuance, the Court questioned whether Plaintiffs’
counsel had diligently pursued discovery in this case. Ultimately, over the Wyndham Defendants’
objection, the Court granted a sixty-day continuance and entered an order requiring the Wyndham
Defendants to: (i) produce certain categories of additional documents; and (ii) present corporate
representatives for depositions. The Wyndham Defendants complied. The Wyndham Defendants
also voluntarily extended the submission of their summary judgment motion by an additional three
weeks. It is currently set for submission on July 14, 2023.
Following the Court’s order granting the continuance, the Wyndham Defendants presented
two corporate representatives, Rachel Dabrowa and Lisa Belyea, for depositions on more than
twenty topics. Those depositions lasted more than ten hours combined, and Plaintiffs’ counsel was
abusive throughout. Plaintiffs’ counsel, Nick Pittman, berated and interrupted Ms. Dabrowa and
Ms. Belyea repeatedly in a transparent effort to intimidate and create a misleading record. Below
are a few illustrative exchanges:
Mr. Pittman: Can you explain what the property improvement plan is as it is
defined in the Standards of Operation and Design manual?
Ms. Dabrowa Yes. ... A property improvement plan essentially helps bring the
property up to brand standards.
Mr. . Pittman: And who is it who prepares the property improvement plan?
Mr. . Donovan Objection to form. ...
Ms. . Dabrowa: Please restate the question.
Mr. . Pittman: Who prepares it? Do you understand what prepares means?
Mr. . Donovan Objection to form and objection as harassing.
Ms. Dabrowa Like, are you asking — I mean like who specifically prepared a
specific PIP, or — I’m just trying to clarify like exactly what —
Mr. . Pittman: Ma’am, seriously. I mean this is getting old. You’re aware that the
Standards of Operation and Design manual has a term called
property improvement plan, correct?
Mr. . Donovan Mr. Pittman, I’ll again ask you to treat the witness with respect —
Mr. . Pittman: Counsel, you’re wasting my time. You’re wasting my time.
See Dabrowa Dep. Tr. at 174:18-175:24 (emphasis added), excerpts attached as Exhibit B.
Mr. Pittman: And so here the Wyndham customer care works with the franchisee
to resolve these issues, correct?
Mr. Donovan: Objection to form.
Ms. Belyea: We provide the notification to the property. It’s the property’s
responsibility to solve the issue.
Mr. Pittman: Well, you see we’re down at the bottom on the customer care, you
see where it says if the guest called back, transfer them to a
specialist. Do you see that?
Ms. Belyea: Yes...
Mr. Pittman: That’s your department that’s giving that instruction, correct?
Ms. Belyea: Correct.
Mr. . Pittman: It didn’t say if the guest called back, tell them we can’t help them.
They’ve got to go back to the hotel, does it?
Mr. Donovan Objection to form.
Ms. Belyea: It does not, but —
Mr. Pittman: So -
Mr. Donovan Well, no, Mr. Pittman, let the witness let the witness answer.
Mr. Pittman: She answered the question.
Mr. Donovan No, you interrupted her during —
Mr. Pittman: Here, ma’am, where it says please transfer to a specialist —
Mr. Donovan Object to this line of question and refusing to let the witness answer
Mr. Pittman: Here where it says please transfer to a specialist at 1888-675, who’s
number is []?
Mr. Donovan Ms. Belyea, were you done with your answer to the prior question?
If not, feel free to clarify.
Mr. Pittman: Chris, if you want to ask her question when you — when I’m finished,
you can do that. Make yourself a note if you want to ask her a
question or explain something.
Mr. Donovan Mr. Pittman, we’ll allow you to object as non-responsive, but we
will not allow you to interrupt the witness.
HK
Mr. Pittman: [T]he witness does not have the right — but the witness does not have
the right to not answer my question.
Mr. Donovan She did answer your question and you interrupted her mid-way.
Mr. Pittman: She did not answer my question.
Mr. Donovan: Yes, she did. If you want to strike it —
Mr. Pittman: And [ have the right to go on.
Mr. Donovan: You do not have the right to interrupt.
Mr. Pittman: I have the right to go on.
RK
Mr. Donovan: Rule 199 says you do not get to create a [mis]leading record and
interrupt the witness ....
Mr. Pittman: Chris, Chris
Mr. Donovan: Mr. Pittman, do you want to go off the record? I’m happy to — I’m
trying to be cooperative, but you cannot keep interrupting.
Mr. Pittman: I am going on to Plaintiff's Exhibit 137.
Belyea Dep. Tr. at 91:18-98:11, excerpts attached as Exhibit C.
Mr. Pittman: In the customer complaints that we’ve looked at and any others that
relate to that property, do you recall seeing anything in those
customer complaints and particularly responses from the Wyndham
that informed a franchisee that it was their responsibility to — to
monitor and address crime occurring on a property.
Mr. Donovan: Objection to form, scope.
Mr. Dunn: Same objection.
Ms. Belyea: The customer care process is to inform franchisees when we are
made aware of these instances. And because they own and operate
the properties, it’s their responsibility to manage that as they see fit.
Mr. Pittman: Objection, non-responsive. Okay. Listen to my question. And if you
could provide me a response to my question. My question is in any
of the customer care information or communication, did your
department or anyone at Wyndham ever inform the franchisee that
it was their responsibility to monitor and resolve all criminal
conduct occurring on the property?
Mr. Donovan: Mr. Pittman, you’re being unnecessarily argumentative.
Mr. Pittman: I’m not asking you whose responsibility it is; that’s for the jury to
determine. So let me re-ask my question. My question is in all of the
communication that your company, that Wyndham through
customer care had with the franchisee at the Wyndham Dallas Love
Field, did Wyndham in any of that communication say to the
franchisee that it was their responsibility to monitor and resolve the
crimes that were occurring on the property?
Mr. Donovan. Objection, form, scope, asked and answered and misleading.
Ms. Belyea: And I’m not trying to be difficult, but at the beginning we did review
the customer care process, and that’s not specific to just crime. It’s
specific to all customer care concerns, and they’re treated the same
way. That’s — that’s why I’m not being specific.
Mr. Pittman: Okay. Show me a document
Ms. Belyea: We-
Mr. Pittman: Go ahead.
Mr. Donovan Please let her finish her [answer].
Mr. Pittman: Chris, be quiet, seriously. The witness is talking. So I’m not
interrupting the witness. If you
Mr. Donovan You’ve been interrupting her all day, and I’m going to make sure
that the witness has the chance to answer your question.
Mr. Pittman: So, ma’am answer your question, not mine. You’re answering your
question. So answer your question, then let me see if I can get you
to answer mine, but go ahead and finish.
Mr. Donovan Mr. Pittman there’s a way to deal with non-responsive objections.
Berating the witness is not it.
Ms. Belyea: At the beginning of this discussion[], we reviewed a document that
was the customer care process. So all customer care concerns,
allegations that come from guests are tracked the same way and
provided to the property the same way with he same expectations
that they take action and resolve the issue.
Mr. Pittman: Okay. Objection, non-responsive. My question to you is can you —
can you show the jury any document from customer care or
Wyndham that specifies to the franchisee Hawthorn Suites Love
Field that they had the responsibility to monitor crime and to resolve
crime occurring at their property. Is there any such document?
Mr. Donovan: Objection to form... .
Ms. Belyea: So I just referenced a customer care document[] that I talked
through. I can’t speak to other departments and what communication
they’ve had with the property.
Belyea Dep. Tr. at 195:09-198:25.
Despite those abuses, the Wyndham Defendants—above and beyond the discovery that
served as the basis for Plaintiffs’ prior request for a continuance—agreed to schedule depositions
for Anuj Arora, a current Wyndham employee, on June 9, 2023 and Saajan Patel, a former
Wyndham employee, on June 26, 2023. Leading up to the deposition of Mr. Arora, a scheduling
conflict arose. The Wyndham Defendants promptly informed Plaintiffs’ counsel of the need to
teschedule, and they offered to pay any resulting cancellation fees from the court reporter. See,
e.g., E-mail from Jason Hopkins (Wyndham Defendants) to Emily Taylor (Plaintiffs), dated June
12, 2023, 9:14 AM, attached as Exhibit D (“If the court reporter sent you a bill, forward it to me
and I’ll get it paid. There is no basis for fees, as of you of course know.”).
Plaintiffs immediately demanded that the Wyndham Defendants delay summary judgment
yet again, or else face a needless and baseless sanctions motion. Plaintiffs also sought a conference
with the Court on an emergency basis. Plaintiffs’ counsel wrote to the Court:
Plaintiffs in the above-styled action have an urgent desire to confer
with Judge Wysocki regarding the Wyndham Defendants' unilateral
cancellation today of an agreed upon and duly noticed deposition
scheduled for tomorrow of a key witness and Wyndham employee.
Plaintiffs were more than willing to reschedule the deposition,
assuming the Wyndham Defendants would agree to postpone their
summary judgment submission deadline.
See E-mail from Emily Taylor (Plaintiffs) to Eva Richardson, dated June 8, 2023, attached as
Exhibit E (emphasis added); compare E-mail from Emily Taylor (Plaintiffs) to Jason Hopkins
(Wyndham Defendants), dated June 12, 2023, attached as Exhibit D (“We did not request a status
conference.”’).
The Wyndham Defendants joined in that request to obtain guidance from the Court, given
Plaintiffs’ persistent abuse of the discovery process (e.g., serving 250+ written requests, harassing
and interrupting witnesses, threatening a sanctions motion to further delay summary judgment,
etc.). See E-mail from Jason Hopkins (the Wyndham Defendants) to Eva Richardson, dated June
8, 2023, attached as Exhibit E (“The Wyndham defendants agree that a phone conference with the
Court (or an associate judge, should the Court prefer) would be helpful to the parties . . . .”). The
following day, Plaintiffs’ counsel withdrew their request for a conference. See E-mail from Nick
Pittman (Plaintiffs) to Eva Richardson, June 9, 2023, attached as Exhibit E (“Contrary to the
Wyndham defendants email [sic], there is NO need to arrange a conference with the Court at this
time.”). The Wyndham Defendants then filed a motion to schedule a conference with the Court.
Plaintiffs proceeded with filing the Motion, apparently hoping to jump ahead of the Wyndham
Defendants’ motion for a status conference (which was originally requested by Plaintiffs’ counsel).
The Motion seeks $675.00 for purported late-cancellation fees from a court reporter, but
the Motion does not attach any invoices in support. See Motion at § 10. The Motion also omits the
fact that the Wyndham Defendants had already offered to pay any late-cancellation fees, upon
receipt of an invoice, which they never received. See Exhibit D. The Motion also seeks $1,912.50
for purported attorneys’ fees supposedly incurred by Plaintiffs for preparing and filing the Motion,
which would have not been incurred had they just forwarded the bill from the court reporter. See
Motion at § 10. The Motion does not attach any contemporaneously kept billing records in
support—only an affidavit from Plaintiffs’ counsel stating that their hourly rate is $375, and that
Plaintiffs’ counsel worked roughly five hours. /d.; see also Affidavit of Emily Taylor (“Taylor
Aff.”), attached as Exhibit D to Motion. The Motion and accompanying affidavit never clearly
specify whether Plaintiffs actually incurred the fees alleged, or whether Plaintiffs’ counsel has
been retained on a contingency basis.
The Motion is misleading in several other respects. In one notable example, Plaintiffs claim
that the Wyndham Defendants have misstated Texas law on franchisor liability. See Motion at §
7. Plaintiffs cite the Texas Supreme Court’s decision in Dow Chem. Co. v. Bright, 89 S.W.3d 602,
606 (Tex. 2002), claiming that it “explain[s] franchisor premises liability.” Motion at {| 2, 7. That
is a clear misrepresentation. In reality, Bright is not a franchise case. It is a construction case that
never even mentions franchising.
To date, Plaintiffs have not identified a single Texas franchise case that would support the
denial of the Wyndham Defendants’ summary judgment motion, and Plaintiffs are blatantly
mischaracterizing the cases they cite when suggesting otherwise. 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 the franchisor of the DoubleTree® hotel brand franchisor in a premises
liability case because the franchisor owed no legal duty, a matter of law); Risner v. McDonald’s
Corp., 18 S.W.3d 903, 906 (Tex. App.—Beaumont 2000, pet. denied) (holding that the
McDonalds’s® franchisor, as a matter of law, did not owe a premises liability duties); 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 o” does not amount to the type or degree
of control necessary to hold a franchisor liable under a premises theory); accord 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
10
controls premises does have a duty to use ordinary care to protect invitees... .” (internal quotations
and alterations omitted).
Il. ARGUMENTS & AUTHORITIES
Discovery sanctions are for securing compliance with discovery rules, and any sanction
imposed must relate to the misconduct established. See, e.g., Hogg v. Lynch, Chappell & Alsup,
P.C., 553 S.W.3d 55, 66 (Tex. App.—El Paso 2018, no pet.). In the Motion, Plaintiffs seek
sanctions in the form of a attorneys’ fee award of $1,912.50 and late-cancellation fees from a court
reporter amounting to $675.00. Plaintiffs also request yet another delay in the submission of the
Wyndham Defendants’ summary judgment motion. The Motion lacks merit and has been filed in
bad faith.
As a threshold matter, there is no underlying discovery misconduct (at least by the
Wyndham Defendants). Counsel for the Wyndham Defendants had scheduling conflicts and
needed to reschedule a deposition—which parties routinely work through cooperatively without
needing to involve the Court. Once it became clear that Plaintiffs’ counsel was threatening
anctions solely to delay summary judgment (even though Plaintiffs already completed the
depositions that served as the basis for their prior continuance motion), the Wyndham Defendants
joined in Plaintiffs’ request for a conference with the Court to obtain guidance. Plaintiffs have
been abusing the discovery process throughout this case against the Wyndham Defendants, and
the Motion simply represents the latest example of that pattern.
As to the $675.00 in purported late-cancellation fees from the court reporter, the Wyndham
Defendants—prior to the filing of the Motion—offered to pay any such fees and asked Plaintiffs’
counsel to send any invoice they received from the vendor. See Exhibit D. The fact that Plaintiffs’
counsel requested such fees in the form of a sanction—without disclosing that the Wyndham
11
Defendants already offered to pay them, and without attaching any documentation from the vendor
supporting those fees illustrates the bad-faith nature of Plaintiffs’ Motion. For these reasons,
there is no support for awarding Plaintiffs vendor fees in the form of a sanction.
Plaintiffs also seek attorneys’ fees in the amount of $1,912.50, which, according to
Plaintiffs’ counsel, represents 5.1 hours’ worth of work at a rate of $375.00. But the Motion does
not attach any contemporaneously kept billing records in support. Accordingly, even assuming
arguendo that there was underlying discovery misconduct by the Wyndham Defendants (there was
not), the request for fees lacks necessary support. See, e.g., El Apple I, Ltd. v. Olivas, 370 S.W.3d
757, 763 (Tex. 2012) (overturning fee award where party did not produce any contemporaneously
kept billing records or other documentary evidence supporting the hours worked).
Ultimately, the Motion is, at its core, a second motion for continuance masquerading as a
motion for sanctions. In manufacturing a discovery dispute over a simple scheduling issue and
framing it in terms of sanctions, Plaintiffs are attempting to sidestep the procedural predicates for
obtaining another continuance, see, e.g., Tex. R. Civ. P. 251, without ever explaining why they did
not seek Mr. Arora’s deposition in connection with their prior request for a continuance. There
simply is no basis for sanctioning the Wyndham Defendants or delaying summary judgment.
Plaintiffs’ delay and gamesmanship should not be countenanced, especially in what is, and always
has been, a straightforward summary judgment case as to the Wyndham Defendants. See, e.g.,
DoubleTree Hotels, 122 $.W.3d at 919 (reversing a default judgment against the franchisor of the
DoubleTree® hotel brand franchisor in a premises liability case because the franchisor owed no
legal duty, as a matter of law).
12
Iv. CONCLUSION & REQUEST FOR RELIEF
For the foregoing reasons, the Wyndham Defendants respectfully request that the Court
DENY the Motion and grant the Wyndham Defendants such other relief to which they may be
entitled at law or in equity.
Date: June 23, 2023 Respectfully submitted,
DLA PIPER LLP (US)
/s/ Jason Hopkins
Jason Hopkins
State Bar No. 24059969
jason. hopkins@us.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@us.dlapiper.com
845 Texas Avenue, Suite 3800
Houston, Texas 77002
T: 713.425.8400
F: 713.425.8401
David S. Sager, pro hac vice
51 John F. Kennedy Parkway, Suite 120
Short Hills, New Jersey 07078
david.sager@us.dlapiper.com
T: 973.520.2550
F: 973.520.2551
Counsel for Defendants
Wyndham Hotels & Resorts, Inc.,
Wyndham Hotel Group, LLC, and
Hawthorn Suites Franchising, Inc.
13
CERTIFICATE OF SERVICE
I hereby certify that, on June 23, 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/ Jason Hopkins
Jason Hopkins
14
EXHIBIT A
PLAINTIFFS' MOTION TO COMPEL
February 13, 2023
REPORTER'S RECORD
VOLUME 1 OF 1 VOLUMES
TRIAL COURT CAUSE NO. 21-04901
TONY EVANS, SR., AND ) IN THE DISTRICT COURT
ARETHA EVANS, )
INDIVIDUALLY AND ON BEHALF)
OF THEIR MINOR SON, T.E., )
DECEASED, FAITH TANKSLEY )
ON BEHALF OF MINOR T.E., )
Ill, INDIVIDUALLY AND ON
BEHALF OF HIS FATHER, )
T.E., DECEASED, AND DEON )
WILLIAMS
eee DALLAS COUNTY, TEXAS
TASACOM REAL ESTATE, LLC
10 D/B/A HAWTHORN SUITES
DALLAS LOVE FIELD,
pe HAWTHORN SUITES
FRANCHISING, INC., WYNDHAM)
ale HOTELS & RESORTS, INC., )
MOHAMMAD SADIQ NOSHAHI, )
eS) DIAMOND STAFFING SERVICES, )
LLC, WYNDHAM HOTEL GROUP, )
14 LLC, TASACOM TECHNOLOGIES, )
INC., SANJEEV JAIN AND )
15 MMAROOFUL CHOUDHURY ) 162ND JUDICIAL DISTRICT
16
i PLAINTIFFS' MOTION TO COMPEL
18
19 On the 13th day of February, 2023, the following
20 proceedings came on to be held in the above-titled
21 and numbered cause before the Honorable Justice
22 Michael O'Neill, Sitting Judge Presiding, held in
23 Dallas, Dallas County, Texas.
24 Proceedings reported by computerized stenotype
25 machine.
Sheretta L. Martin, CSR = 162nd Civil District Court
Phone: 214-653-6260
Email: slmartin@dallascounty.org
PLAINTIFFS' MOTION TO COMPEL
February 13, 2023
APPEARANCES
Aubrey Nick Pittman
SBOT NO. 16049750
THE PITTMAN LAW FIRM, ace
100 Crescent Court, Suite 700
Dallas, Texas 75201
Telephone: 214459-3454
Attorney for Plaintiffs
Eva DeLeon
SBOT NO. 24074774
THOMPSON, COE, COUSINS & IRONS, LLP
701 Brazos, Suite 1500
10 Austin, Texas 78701
Telephone: 512-708-8200
pe Attorney for Defendants
ale
3)
Jason M. Hopkins
14 SBOT NO. 24059969
DLA PIPER LLP
15 1900 N. Pearl Street, Suite 2200
Dallas, Texas 75201
16 Telephone: 214-743-4546
i -and-
18 Christopher B. Donovan
SBOT NO. 24097614
19 DLA PIPER LLP
1000 Louisiana Street, Suite 2800
20 Houston, 77002
Texas
Telephone: 713-425-8400
21 Attorneys for Defendants Hawthorn Suites and Wyndham
Hotels & Resorts
22
23
24
25
Sheretta L. Martin, CSR - 162nd Civil District Court
Phone: 214-653-6260
Email: slmartin@dallascounty.org
PLAINTIFFS' MOTION TO COMPEL
February 13, 2023
PROCEEDINGS
THE COURT: Cause No. DC-21-04901;
Evans versus Tasacom Real Estate. This is a motion
to compel against multiple Defendants. Have y'all
worked out any aspect of this? Let's start out with
Wyndham, i Guciss Pull that up. Yeah.
Have y'all discussed anything between
Wyndham entities and the Plaintiff?
MR. PITTMAN: We have not, Your Honor.
10 THE COURT: They're the franchisor?
pe Wyndham is?
ale MR. PITTMAN: Correct.
eS) THE COURT: Okay. Let me try the
14 other entities then and see if we have anything.
15 MS. DeLEON: We did try to discuss
16 some of the issues and, in fact, as I mentioned in
i our response, Some Of the Olnen Ours ranging daccoverny,
18 issues we attempted to resolve prior to the filing of
19 the motion as well. And so what's left is what the
20 parties has reached an impasse on.
21 THE COURT: Let's do the Wyndham ones
22 first. What are you trying to discover from the
23 franchisors that they've not been responsive to?
24 MR. PITTMAN: Yes. The eranchisons
25 and there are three Wyndham entities and they
Sheretta L. Martin, CSR = 162nd Civil District Court
Phone: 214-653-6260
Email: slmartin@dallascounty.org
PLAINTIFFS' MOTION TO COMPEL
February 13, 2023
constitute the franchisors who took the Hawthorn
Suites Love Field, which is the property we're
talking about, they took that from a previous
franchisee and gave it to lock, stock, and barrel
with all the warts to the Tasacom people. And what
we have = One) Of he acsues: ain he cage: as, Pha he
Wyndham parties have decided that they don't have to
produce any discovery unless it's narrow to what they
think the case is all about.
10 In fact, when we served the request
pe for production on the Wyndham Hotel parties, they
ale Have Not produced. o. sangle! document. NOE Fone wasch
eS) respect to what was served on them in September.
14 There were some other documents that were produced as
15 it relates to Tasacom, the franchisee. And so =
16 THE COURT: Okay. And I want to just
i do with Wyndham right now and find out who — what
18 the franchisors need to produce.
19 MR. PITTMAN: Your Honor -- yeah. So,
20 if you -- if we start ae I don't know -- does Your
21 Honor have a proposed order that has all of the
22 categories?
23 THE COURT: Well, let's discuss them
24 briefly before I review it.
25 MR. PITTMAN: So, Your Honor, maybe I
Sheretta L. Martin, CSR - 162nd Civil District Court
Phone: 214-653-6260
Email: slmartin@dallascounty.org
PLAINTIFFS' MOTION TO COMPEL
February 13, 2023
should it do this way. There are some overarching
factual issues that have been pled in Plaintiffs"
Sixth Amended Petition. The first allegation that
goes to most of the request for production is that
the Wyndham franchisor had actual and contractual
authority over the safety and security operations at
iene Hawthorn oumtes. That's the allegation that we
made based on depositions that we've taken. Again,
this is the sixth amended petition so it has allowed
10 us to take some facts that we developed through
pe deposition testimony and now plead those facts into
lez eblegaclon. So those are in paragraphs 80 through 87
3) of the sixth amended petition that there's actual and
14 contractual authority.
15 So probably a half of the requests
16 that the Wyndham has failed to respond to goes to
i Csitaolieh creles enat Contractual, auenomilty Ol enat
18 actual authority, and those are the things that they
19 have not produced because of their narrow reading
20 of a+
21 THE COURT: So you got that in
22 discovery from whom?
23 MR. PITTMAN: We got testimony from
24 some of the witnesses who were the Tasacom, the
25 franchisee, told us certain information about
Sheretta L. Martin, CSR - 162nd Civil District Court
Phone: 214-653-6260
Email: slmartin@dallascounty.org
PLAINTIFFS' MOTION TO COMPEL
February 13, 2023
information they had received from Wyndham and
certain things that the Wyndham people were doing.
For instance, the Wyndham people they
would send inspectors to the Tasacom property to
inspect to see if the property had the necessary
environmental designs, which the Dallas police said
were necessary to thwart crime that was occurring,
the rampant crime that was occurring there. So the
testimony was that the Wyndham people sent their
10 inspectors there to inspect the property to see if
pe the designs that the Dallas Police Department, the
ale City of Dallas said were necessary to prevent this
eS) property from continuing to be a habitual criminal
14 property whether it had been done. So those are the
15 things we were able to establish.
16 THE COURT: And the contractual
i Eolarronship. involving. Phat. Wyndham eve cw: ore
18 security, you have the contracts that say that?
19 MR. PITTMAN: So there's -- yes, Your
20 Honor. So a+ and part of some of the other
21 information that we're requesting is information to
22 allow us, because there's some -- they're making an
23 argument that the contractual control that we're
24 alleging, they're saying it doesn't exist, so we've
25 asked for certain documents as it relates to their
Sheretta L. Martin, CSR = 162nd Civil District Court
Phone: 214-653-6260
Email: slmartin@dallascounty.org
PLAINTIFFS' MOTION TO COMPEL
February 13, 2023
custom and usage of that —- those same terms with
other franchisees to show that that's exactly what it
means. What it means is that the Wyndham has the
power -- in other words, if the franchisee does not
do what they're required to do under the standards
and design manual, then Wyndham, the franchisor, can
ome! lane They can either do that or they can take
over the property and give it to someone else.
They've done it before.
10 The prior franchisee lost their
pe franchise because they were not willing to do what
ale Wyndham required them to do, and we tried to get that
eS) information as it relates to the prior franchisee and
14 Wyndham has decided that they don't want to disclose
15 any of that.
16 THE COURT: Okay. Get a Wyndham
i response.
18 MR. DONOVAN: Thank you, Your Honor.
19 My name is Christopher Donovan on behalf of the
20 Wyndham Defendants which would include Wyndham Hotels
21 and Resorts, Incorporated, Wyndham Hotel Group, LLC
22 and Hawthorn Suites Franchisee, which is the
23 franchisor of the Hawthorn Suites brand. The other
24 two entities are corporate affiliates. One of which
25 is a publicly traded company; the other one is just a
Sheretta L. Martin, CSR - 162nd Civil District Court
Phone: 214-653-6260
Email: slmartin@dallascounty.org
PLAINTIFFS' MOTION TO COMPEL
February 13, 2023
corporate affiliate.
Factually, there are a couple of
things that are incorrect
Preview
FILED 6/23/2023 4:54 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Kellie Juricek DEPUTY CAUSE NO. DC-21-04901 TONY EVANS, SR., and ARETHA EVANS, individually and on behalf of their minor son, T.E., deceased, FAITH TANKSLEY, on behalf IN THE DISTRICT COURT OF of minor, T.E., III, individually and on behalfof his father, T.E., deceased, and DEON WILLIAMS, DALLAS COUNTY, TEXAS Plaintiffs, 162™ JUDICIAL DISTRICT ae TASACOM REAL ESTATE, LLC, et al., Defendants. DEFENDANTS WYNDHAM HOTELS & RESORTS, INC., WYNDHAM HOTEL GROUP, LLC, AND HAWTHORN SUITES FRANCHISING, INC.’S RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION FOR DISCOVERY SANCTIONS Defendants Wyndham Hotels & Resorts, Inc. (“WHRI”’), Wyndham Hotel Group, LLC (“WHG”), and Hawthorn Suites Franchising, Inc. (“HSF”) (collectively, the “Wyndham Defendants”), through their undersigned counsel, submit this Response in Opposition to Plaintiffs’ Motion for Discovery Sanctions (the “Motion”), and in support thereof state as follows: I. INTRODUCTION This case is ready for summary judgment. The Court previously granted a sixty-day continuance of the summary judgment hearing to allow Plaintiffs to conduct certain specific discovery. That discovery is complete. Indeed, the Wyndham Defendants have done everything the Court previously ordered in connection with continuing the submission of the Wyndham Defendants’ summary judgment motion. Over and above what the Court ordered, in a futile attempt to work cooperatively with Plaintiffs, the Wyndham Defendants voluntarily postponed the submission of their summary judgment motion by an additional three weeks and agreed to schedule two additional depositions (one of a current Wyndham employee, one of a former Wyndham employee). The Motion is about what happened after the Wyndham Defendants agreed to the needless and dilatory discovery Plaintiffs requested. Specifically, a scheduling conflict arose for one of the depositions, and the Wyndham Defendants explained that it would need to be rescheduled— something that happens every day in Dallas without Court involvement. Plaintiffs’ counsel then manufactured a strategy to continue to avoid a summary judgment ruling in this straightforward franchise case: they threatened to file a baseless motion for sanctions unless the Wyndham Defendants consented to a third postponement of the summary judgment hearing. Because the Wyndham Defendants viewed that as impermissible gamesmanship, they joined Plaintiffs’ counsel in a request for a status conference with the Court. After the Wyndham Defendants joined in that request, Plaintiffs’ counsel abruptly withdrew it and—seeking to implement their delay strategy— filed this Motion instead. The Court should put a stop to the insanity. The Court should deny Plaintiffs’ Motion and order them to respond to the Wyndham Defendants’ motion for summary judgment as currently scheduled. I. BACKGROUND HSF is the franchisor of the Hawthorn® hotel brand. HSF licensed the Hawthorn® marks and proprietary methodology to a third party, Defendant Tasacom Real Estate, LLC (““Tasacom’), pursuant to a franchise agreement for use at Tasacom’s guest lodging facility located in Dallas, Texas. WHRI is HSF’s ultimate parent company, and WHG is another WHRI subsidiary. While Plaintiffs’ claims against HSF lack legal merit under blackletter Texas law, Plaintiffs have never even articulated a Rule 13 basis for bringing suit against WHRI and WHG. See Tex. R. Civ. P. 13 (providing that sanctions are appropriate for the filing of “groundless” pleadings—i.e., pleadings that have “no basis in law or fact”). Plaintiffs have propounded more than 250 written discovery requests on the Wyndham Defendants, and the Wyndham Defendants have produced thousands of pages of documents. At a hearing on Plaintiffs’ motion to compel on February 13, 2023, Ret. Justice O’Neill, sitting on a visiting basis, abated discovery as to the Wyndham Defendants pending a ruling on the Wyndham Defendants’ summary judgment motion, recognizing that Plaintiffs’ claims against them involve controlling threshold legal questions. See Hearing Transcript at 13:19-23, attached as Exhibit A (“I will hold ruling on the discovery requirements to the Wyndham entities until the Court has had a chance to rule on the summary judgment motion.”). Ignoring that ruling, Plaintiffs later renewed their motion to compel, in part, and requested a continuance. The Wyndham Defendants opposed because, inter alia, Plaintiffs never identified what open fact questions they intended to address through additional discovery. During the hearing on that motion for continuance, the Court questioned whether Plaintiffs’ counsel had diligently pursued discovery in this case. Ultimately, over the Wyndham Defendants’ objection, the Court granted a sixty-day continuance and entered an order requiring the Wyndham Defendants to: (i) produce certain categories of additional documents; and (ii) present corporate representatives for depositions. The Wyndham Defendants complied. The Wyndham Defendants also voluntarily extended the submission of their summary judgment motion by an additional three weeks. It is currently set for submission on July 14, 2023. Following the Court’s order granting the continuance, the Wyndham Defendants presented two corporate representatives, Rachel Dabrowa and Lisa Belyea, for depositions on more than twenty topics. Those depositions lasted more than ten hours combined, and Plaintiffs’ counsel was abusive throughout. Plaintiffs’ counsel, Nick Pittman, berated and interrupted Ms. Dabrowa and Ms. Belyea repeatedly in a transparent effort to intimidate and create a misleading record. Below are a few illustrative exchanges: Mr. Pittman: Can you explain what the property improvement plan is as it is defined in the Standards of Operation and Design manual? Ms. Dabrowa Yes. ... A property improvement plan essentially helps bring the property up to brand standards. Mr. . Pittman: And who is it who prepares the property improvement plan? Mr. . Donovan Objection to form. ... Ms. . Dabrowa: Please restate the question. Mr. . Pittman: Who prepares it? Do you understand what prepares means? Mr. . Donovan Objection to form and objection as harassing. Ms. Dabrowa Like, are you asking — I mean like who specifically prepared a specific PIP, or — I’m just trying to clarify like exactly what — Mr. . Pittman: Ma’am, seriously. I mean this is getting old. You’re aware that the Standards of Operation and Design manual has a term called property improvement plan, correct? Mr. . Donovan Mr. Pittman, I’ll again ask you to treat the witness with respect — Mr. . Pittman: Counsel, you’re wasting my time. You’re wasting my time. See Dabrowa Dep. Tr. at 174:18-175:24 (emphasis added), excerpts attached as Exhibit B. Mr. Pittman: And so here the Wyndham customer care works with the franchisee to resolve these issues, correct? Mr. Donovan: Objection to form. Ms. Belyea: We provide the notification to the property. It’s the property’s responsibility to solve the issue. Mr. Pittman: Well, you see we’re down at the bottom on the customer care, you see where it says if the guest called back, transfer them to a specialist. Do you see that? Ms. Belyea: Yes... Mr. Pittman: That’s your department that’s giving that instruction, correct? Ms. Belyea: Correct. Mr. . Pittman: It didn’t say if the guest called back, tell them we can’t help them. They’ve got to go back to the hotel, does it? Mr. Donovan Objection to form. Ms. Belyea: It does not, but — Mr. Pittman: So - Mr. Donovan Well, no, Mr. Pittman, let the witness let the witness answer. Mr. Pittman: She answered the question. Mr. Donovan No, you interrupted her during — Mr. Pittman: Here, ma’am, where it says please transfer to a specialist — Mr. Donovan Object to this line of question and refusing to let the witness answer Mr. Pittman: Here where it says please transfer to a specialist at 1888-675, who’s number is []? Mr. Donovan Ms. Belyea, were you done with your answer to the prior question? If not, feel free to clarify. Mr. Pittman: Chris, if you want to ask her question when you — when I’m finished, you can do that. Make yourself a note if you want to ask her a question or explain something. Mr. Donovan Mr. Pittman, we’ll allow you to object as non-responsive, but we will not allow you to interrupt the witness. HK Mr. Pittman: [T]he witness does not have the right — but the witness does not have the right to not answer my question. Mr. Donovan She did answer your question and you interrupted her mid-way. Mr. Pittman: She did not answer my question. Mr. Donovan: Yes, she did. If you want to strike it — Mr. Pittman: And [ have the right to go on. Mr. Donovan: You do not have the right to interrupt. Mr. Pittman: I have the right to go on. RK Mr. Donovan: Rule 199 says you do not get to create a [mis]leading record and interrupt the witness .... Mr. Pittman: Chris, Chris Mr. Donovan: Mr. Pittman, do you want to go off the record? I’m happy to — I’m trying to be cooperative, but you cannot keep interrupting. Mr. Pittman: I am going on to Plaintiff's Exhibit 137. Belyea Dep. Tr. at 91:18-98:11, excerpts attached as Exhibit C. Mr. Pittman: In the customer complaints that we’ve looked at and any others that relate to that property, do you recall seeing anything in those customer complaints and particularly responses from the Wyndham that informed a franchisee that it was their responsibility to — to monitor and address crime occurring on a property. Mr. Donovan: Objection to form, scope. Mr. Dunn: Same objection. Ms. Belyea: The customer care process is to inform franchisees when we are made aware of these instances. And because they own and operate the properties, it’s their responsibility to manage that as they see fit. Mr. Pittman: Objection, non-responsive. Okay. Listen to my question. And if you could provide me a response to my question. My question is in any of the customer care information or communication, did your department or anyone at Wyndham ever inform the franchisee that it was their responsibility to monitor and resolve all criminal conduct occurring on the property? Mr. Donovan: Mr. Pittman, you’re being unnecessarily argumentative. Mr. Pittman: I’m not asking you whose responsibility it is; that’s for the jury to determine. So let me re-ask my question. My question is in all of the communication that your company, that Wyndham through customer care had with the franchisee at the Wyndham Dallas Love Field, did Wyndham in any of that communication say to the franchisee that it was their responsibility to monitor and resolve the crimes that were occurring on the property? Mr. Donovan. Objection, form, scope, asked and answered and misleading. Ms. Belyea: And I’m not trying to be difficult, but at the beginning we did review the customer care process, and that’s not specific to just crime. It’s specific to all customer care concerns, and they’re treated the same way. That’s — that’s why I’m not being specific. Mr. Pittman: Okay. Show me a document Ms. Belyea: We- Mr. Pittman: Go ahead. Mr. Donovan Please let her finish her [answer]. Mr. Pittman: Chris, be quiet, seriously. The witness is talking. So I’m not interrupting the witness. If you Mr. Donovan You’ve been interrupting her all day, and I’m going to make sure that the witness has the chance to answer your question. Mr. Pittman: So, ma’am answer your question, not mine. You’re answering your question. So answer your question, then let me see if I can get you to answer mine, but go ahead and finish. Mr. Donovan Mr. Pittman there’s a way to deal with non-responsive objections. Berating the witness is not it. Ms. Belyea: At the beginning of this discussion[], we reviewed a document that was the customer care process. So all customer care concerns, allegations that come from guests are tracked the same way and provided to the property the same way with he same expectations that they take action and resolve the issue. Mr. Pittman: Okay. Objection, non-responsive. My question to you is can you — can you show the jury any document from customer care or Wyndham that specifies to the franchisee Hawthorn Suites Love Field that they had the responsibility to monitor crime and to resolve crime occurring at their property. Is there any such document? Mr. Donovan: Objection to form... . Ms. Belyea: So I just referenced a customer care document[] that I talked through. I can’t speak to other departments and what communication they’ve had with the property. Belyea Dep. Tr. at 195:09-198:25. Despite those abuses, the Wyndham Defendants—above and beyond the discovery that served as the basis for Plaintiffs’ prior request for a continuance—agreed to schedule depositions for Anuj Arora, a current Wyndham employee, on June 9, 2023 and Saajan Patel, a former Wyndham employee, on June 26, 2023. Leading up to the deposition of Mr. Arora, a scheduling conflict arose. The Wyndham Defendants promptly informed Plaintiffs’ counsel of the need to teschedule, and they offered to pay any resulting cancellation fees from the court reporter. See, e.g., E-mail from Jason Hopkins (Wyndham Defendants) to Emily Taylor (Plaintiffs), dated June 12, 2023, 9:14 AM, attached as Exhibit D (“If the court reporter sent you a bill, forward it to me and I’ll get it paid. There is no basis for fees, as of you of course know.”). Plaintiffs immediately demanded that the Wyndham Defendants delay summary judgment yet again, or else face a needless and baseless sanctions motion. Plaintiffs also sought a conference with the Court on an emergency basis. Plaintiffs’ counsel wrote to the Court: Plaintiffs in the above-styled action have an urgent desire to confer with Judge Wysocki regarding the Wyndham Defendants' unilateral cancellation today of an agreed upon and duly noticed deposition scheduled for tomorrow of a key witness and Wyndham employee. Plaintiffs were more than willing to reschedule the deposition, assuming the Wyndham Defendants would agree to postpone their summary judgment submission deadline. See E-mail from Emily Taylor (Plaintiffs) to Eva Richardson, dated June 8, 2023, attached as Exhibit E (emphasis added); compare E-mail from Emily Taylor (Plaintiffs) to Jason Hopkins (Wyndham Defendants), dated June 12, 2023, attached as Exhibit D (“We did not request a status conference.”’). The Wyndham Defendants joined in that request to obtain guidance from the Court, given Plaintiffs’ persistent abuse of the discovery process (e.g., serving 250+ written requests, harassing and interrupting witnesses, threatening a sanctions motion to further delay summary judgment, etc.). See E-mail from Jason Hopkins (the Wyndham Defendants) to Eva Richardson, dated June 8, 2023, attached as Exhibit E (“The Wyndham defendants agree that a phone conference with the Court (or an associate judge, should the Court prefer) would be helpful to the parties . . . .”). The following day, Plaintiffs’ counsel withdrew their request for a conference. See E-mail from Nick Pittman (Plaintiffs) to Eva Richardson, June 9, 2023, attached as Exhibit E (“Contrary to the Wyndham defendants email [sic], there is NO need to arrange a conference with the Court at this time.”). The Wyndham Defendants then filed a motion to schedule a conference with the Court. Plaintiffs proceeded with filing the Motion, apparently hoping to jump ahead of the Wyndham Defendants’ motion for a status conference (which was originally requested by Plaintiffs’ counsel). The Motion seeks $675.00 for purported late-cancellation fees from a court reporter, but the Motion does not attach any invoices in support. See Motion at § 10. The Motion also omits the fact that the Wyndham Defendants had already offered to pay any late-cancellation fees, upon receipt of an invoice, which they never received. See Exhibit D. The Motion also seeks $1,912.50 for purported attorneys’ fees supposedly incurred by Plaintiffs for preparing and filing the Motion, which would have not been incurred had they just forwarded the bill from the court reporter. See Motion at § 10. The Motion does not attach any contemporaneously kept billing records in support—only an affidavit from Plaintiffs’ counsel stating that their hourly rate is $375, and that Plaintiffs’ counsel worked roughly five hours. /d.; see also Affidavit of Emily Taylor (“Taylor Aff.”), attached as Exhibit D to Motion. The Motion and accompanying affidavit never clearly specify whether Plaintiffs actually incurred the fees alleged, or whether Plaintiffs’ counsel has been retained on a contingency basis. The Motion is misleading in several other respects. In one notable example, Plaintiffs claim that the Wyndham Defendants have misstated Texas law on franchisor liability. See Motion at § 7. Plaintiffs cite the Texas Supreme Court’s decision in Dow Chem. Co. v. Bright, 89 S.W.3d 602, 606 (Tex. 2002), claiming that it “explain[s] franchisor premises liability.” Motion at {| 2, 7. That is a clear misrepresentation. In reality, Bright is not a franchise case. It is a construction case that never even mentions franchising. To date, Plaintiffs have not identified a single Texas franchise case that would support the denial of the Wyndham Defendants’ summary judgment motion, and Plaintiffs are blatantly mischaracterizing the cases they cite when suggesting otherwise. 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 the franchisor of the DoubleTree® hotel brand franchisor in a premises liability case because the franchisor owed no legal duty, a matter of law); Risner v. McDonald’s Corp., 18 S.W.3d 903, 906 (Tex. App.—Beaumont 2000, pet. denied) (holding that the McDonalds’s® franchisor, as a matter of law, did not owe a premises liability duties); 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 o” does not amount to the type or degree of control necessary to hold a franchisor liable under a premises theory); accord 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 10 controls premises does have a duty to use ordinary care to protect invitees... .” (internal quotations and alterations omitted). Il. ARGUMENTS & AUTHORITIES Discovery sanctions are for securing compliance with discovery rules, and any sanction imposed must relate to the misconduct established. See, e.g., Hogg v. Lynch, Chappell & Alsup, P.C., 553 S.W.3d 55, 66 (Tex. App.—El Paso 2018, no pet.). In the Motion, Plaintiffs seek sanctions in the form of a attorneys’ fee award of $1,912.50 and late-cancellation fees from a court reporter amounting to $675.00. Plaintiffs also request yet another delay in the submission of the Wyndham Defendants’ summary judgment motion. The Motion lacks merit and has been filed in bad faith. As a threshold matter, there is no underlying discovery misconduct (at least by the Wyndham Defendants). Counsel for the Wyndham Defendants had scheduling conflicts and needed to reschedule a deposition—which parties routinely work through cooperatively without needing to involve the Court. Once it became clear that Plaintiffs’ counsel was threatening anctions solely to delay summary judgment (even though Plaintiffs already completed the depositions that served as the basis for their prior continuance motion), the Wyndham Defendants joined in Plaintiffs’ request for a conference with the Court to obtain guidance. Plaintiffs have been abusing the discovery process throughout this case against the Wyndham Defendants, and the Motion simply represents the latest example of that pattern. As to the $675.00 in purported late-cancellation fees from the court reporter, the Wyndham Defendants—prior to the filing of the Motion—offered to pay any such fees and asked Plaintiffs’ counsel to send any invoice they received from the vendor. See Exhibit D. The fact that Plaintiffs’ counsel requested such fees in the form of a sanction—without disclosing that the Wyndham 11 Defendants already offered to pay them, and without attaching any documentation from the vendor supporting those fees illustrates the bad-faith nature of Plaintiffs’ Motion. For these reasons, there is no support for awarding Plaintiffs vendor fees in the form of a sanction. Plaintiffs also seek attorneys’ fees in the amount of $1,912.50, which, according to Plaintiffs’ counsel, represents 5.1 hours’ worth of work at a rate of $375.00. But the Motion does not attach any contemporaneously kept billing records in support. Accordingly, even assuming arguendo that there was underlying discovery misconduct by the Wyndham Defendants (there was not), the request for fees lacks necessary support. See, e.g., El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 763 (Tex. 2012) (overturning fee award where party did not produce any contemporaneously kept billing records or other documentary evidence supporting the hours worked). Ultimately, the Motion is, at its core, a second motion for continuance masquerading as a motion for sanctions. In manufacturing a discovery dispute over a simple scheduling issue and framing it in terms of sanctions, Plaintiffs are attempting to sidestep the procedural predicates for obtaining another continuance, see, e.g., Tex. R. Civ. P. 251, without ever explaining why they did not seek Mr. Arora’s deposition in connection with their prior request for a continuance. There simply is no basis for sanctioning the Wyndham Defendants or delaying summary judgment. Plaintiffs’ delay and gamesmanship should not be countenanced, especially in what is, and always has been, a straightforward summary judgment case as to the Wyndham Defendants. See, e.g., DoubleTree Hotels, 122 $.W.3d at 919 (reversing a default judgment against the franchisor of the DoubleTree® hotel brand franchisor in a premises liability case because the franchisor owed no legal duty, as a matter of law). 12 Iv. CONCLUSION & REQUEST FOR RELIEF For the foregoing reasons, the Wyndham Defendants respectfully request that the Court DENY the Motion and grant the Wyndham Defendants such other relief to which they may be entitled at law or in equity. Date: June 23, 2023 Respectfully submitted, DLA PIPER LLP (US) /s/ Jason Hopkins Jason Hopkins State Bar No. 24059969 jason. hopkins@us.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@us.dlapiper.com 845 Texas Avenue, Suite 3800 Houston, Texas 77002 T: 713.425.8400 F: 713.425.8401 David S. Sager, pro hac vice 51 John F. Kennedy Parkway, Suite 120 Short Hills, New Jersey 07078 david.sager@us.dlapiper.com T: 973.520.2550 F: 973.520.2551 Counsel for Defendants Wyndham Hotels & Resorts, Inc., Wyndham Hotel Group, LLC, and Hawthorn Suites Franchising, Inc. 13 CERTIFICATE OF SERVICE I hereby certify that, on June 23, 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/ Jason Hopkins Jason Hopkins 14 EXHIBIT A PLAINTIFFS' MOTION TO COMPEL February 13, 2023 REPORTER'S RECORD VOLUME 1 OF 1 VOLUMES TRIAL COURT CAUSE NO. 21-04901 TONY EVANS, SR., AND ) IN THE DISTRICT COURT ARETHA EVANS, ) INDIVIDUALLY AND ON BEHALF) OF THEIR MINOR SON, T.E., ) DECEASED, FAITH TANKSLEY ) ON BEHALF OF MINOR T.E., ) Ill, INDIVIDUALLY AND ON BEHALF OF HIS FATHER, ) T.E., DECEASED, AND DEON ) WILLIAMS eee DALLAS COUNTY, TEXAS TASACOM REAL ESTATE, LLC 10 D/B/A HAWTHORN SUITES DALLAS LOVE FIELD, pe HAWTHORN SUITES FRANCHISING, INC., WYNDHAM) ale HOTELS & RESORTS, INC., ) MOHAMMAD SADIQ NOSHAHI, ) eS) DIAMOND STAFFING SERVICES, ) LLC, WYNDHAM HOTEL GROUP, ) 14 LLC, TASACOM TECHNOLOGIES, ) INC., SANJEEV JAIN AND ) 15 MMAROOFUL CHOUDHURY ) 162ND JUDICIAL DISTRICT 16 i PLAINTIFFS' MOTION TO COMPEL 18 19 On the 13th day of February, 2023, the following 20 proceedings came on to be held in the above-titled 21 and numbered cause before the Honorable Justice 22 Michael O'Neill, Sitting Judge Presiding, held in 23 Dallas, Dallas County, Texas. 24 Proceedings reported by computerized stenotype 25 machine. Sheretta L. Martin, CSR = 162nd Civil District Court Phone: 214-653-6260 Email: slmartin@dallascounty.org PLAINTIFFS' MOTION TO COMPEL February 13, 2023 APPEARANCES Aubrey Nick Pittman SBOT NO. 16049750 THE PITTMAN LAW FIRM, ace 100 Crescent Court, Suite 700 Dallas, Texas 75201 Telephone: 214459-3454 Attorney for Plaintiffs Eva DeLeon SBOT NO. 24074774 THOMPSON, COE, COUSINS & IRONS, LLP 701 Brazos, Suite 1500 10 Austin, Texas 78701 Telephone: 512-708-8200 pe Attorney for Defendants ale 3) Jason M. Hopkins 14 SBOT NO. 24059969 DLA PIPER LLP 15 1900 N. Pearl Street, Suite 2200 Dallas, Texas 75201 16 Telephone: 214-743-4546 i -and- 18 Christopher B. Donovan SBOT NO. 24097614 19 DLA PIPER LLP 1000 Louisiana Street, Suite 2800 20 Houston, 77002 Texas Telephone: 713-425-8400 21 Attorneys for Defendants Hawthorn Suites and Wyndham Hotels & Resorts 22 23 24 25 Sheretta L. Martin, CSR - 162nd Civil District Court Phone: 214-653-6260 Email: slmartin@dallascounty.org PLAINTIFFS' MOTION TO COMPEL February 13, 2023 PROCEEDINGS THE COURT: Cause No. DC-21-04901; Evans versus Tasacom Real Estate. This is a motion to compel against multiple Defendants. Have y'all worked out any aspect of this? Let's start out with Wyndham, i Guciss Pull that up. Yeah. Have y'all discussed anything between Wyndham entities and the Plaintiff? MR. PITTMAN: We have not, Your Honor. 10 THE COURT: They're the franchisor? pe Wyndham is? ale MR. PITTMAN: Correct. eS) THE COURT: Okay. Let me try the 14 other entities then and see if we have anything. 15 MS. DeLEON: We did try to discuss 16 some of the issues and, in fact, as I mentioned in i our response, Some Of the Olnen Ours ranging daccoverny, 18 issues we attempted to resolve prior to the filing of 19 the motion as well. And so what's left is what the 20 parties has reached an impasse on. 21 THE COURT: Let's do the Wyndham ones 22 first. What are you trying to discover from the 23 franchisors that they've not been responsive to? 24 MR. PITTMAN: Yes. The eranchisons 25 and there are three Wyndham entities and they Sheretta L. Martin, CSR = 162nd Civil District Court Phone: 214-653-6260 Email: slmartin@dallascounty.org PLAINTIFFS' MOTION TO COMPEL February 13, 2023 constitute the franchisors who took the Hawthorn Suites Love Field, which is the property we're talking about, they took that from a previous franchisee and gave it to lock, stock, and barrel with all the warts to the Tasacom people. And what we have = One) Of he acsues: ain he cage: as, Pha he Wyndham parties have decided that they don't have to produce any discovery unless it's narrow to what they think the case is all about. 10 In fact, when we served the request pe for production on the Wyndham Hotel parties, they ale Have Not produced. o. sangle! document. NOE Fone wasch eS) respect to what was served on them in September. 14 There were some other documents that were produced as 15 it relates to Tasacom, the franchisee. And so = 16 THE COURT: Okay. And I want to just i do with Wyndham right now and find out who — what 18 the franchisors need to produce. 19 MR. PITTMAN: Your Honor -- yeah. So, 20 if you -- if we start ae I don't know -- does Your 21 Honor have a proposed order that has all of the 22 categories? 23 THE COURT: Well, let's discuss them 24 briefly before I review it. 25 MR. PITTMAN: So, Your Honor, maybe I Sheretta L. Martin, CSR - 162nd Civil District Court Phone: 214-653-6260 Email: slmartin@dallascounty.org PLAINTIFFS' MOTION TO COMPEL February 13, 2023 should it do this way. There are some overarching factual issues that have been pled in Plaintiffs" Sixth Amended Petition. The first allegation that goes to most of the request for production is that the Wyndham franchisor had actual and contractual authority over the safety and security operations at iene Hawthorn oumtes. That's the allegation that we made based on depositions that we've taken. Again, this is the sixth amended petition so it has allowed 10 us to take some facts that we developed through pe deposition testimony and now plead those facts into lez eblegaclon. So those are in paragraphs 80 through 87 3) of the sixth amended petition that there's actual and 14 contractual authority. 15 So probably a half of the requests 16 that the Wyndham has failed to respond to goes to i Csitaolieh creles enat Contractual, auenomilty Ol enat 18 actual authority, and those are the things that they 19 have not produced because of their narrow reading 20 of a+ 21 THE COURT: So you got that in 22 discovery from whom? 23 MR. PITTMAN: We got testimony from 24 some of the witnesses who were the Tasacom, the 25 franchisee, told us certain information about Sheretta L. Martin, CSR - 162nd Civil District Court Phone: 214-653-6260 Email: slmartin@dallascounty.org PLAINTIFFS' MOTION TO COMPEL February 13, 2023 information they had received from Wyndham and certain things that the Wyndham people were doing. For instance, the Wyndham people they would send inspectors to the Tasacom property to inspect to see if the property had the necessary environmental designs, which the Dallas police said were necessary to thwart crime that was occurring, the rampant crime that was occurring there. So the testimony was that the Wyndham people sent their 10 inspectors there to inspect the property to see if pe the designs that the Dallas Police Department, the ale City of Dallas said were necessary to prevent this eS) property from continuing to be a habitual criminal 14 property whether it had been done. So those are the 15 things we were able to establish. 16 THE COURT: And the contractual i Eolarronship. involving. Phat. Wyndham eve cw: ore 18 security, you have the contracts that say that? 19 MR. PITTMAN: So there's -- yes, Your 20 Honor. So a+ and part of some of the other 21 information that we're requesting is information to 22 allow us, because there's some -- they're making an 23 argument that the contractual control that we're 24 alleging, they're saying it doesn't exist, so we've 25 asked for certain documents as it relates to their Sheretta L. Martin, CSR = 162nd Civil District Court Phone: 214-653-6260 Email: slmartin@dallascounty.org PLAINTIFFS' MOTION TO COMPEL February 13, 2023 custom and usage of that —- those same terms with other franchisees to show that that's exactly what it means. What it means is that the Wyndham has the power -- in other words, if the franchisee does not do what they're required to do under the standards and design manual, then Wyndham, the franchisor, can ome! lane They can either do that or they can take over the property and give it to someone else. They've done it before. 10 The prior franchisee lost their pe franchise because they were not willing to do what ale Wyndham required them to do, and we tried to get that eS) information as it relates to the prior franchisee and 14 Wyndham has decided that they don't want to disclose 15 any of that. 16 THE COURT: Okay. Get a Wyndham i response. 18 MR. DONOVAN: Thank you, Your Honor. 19 My name is Christopher Donovan on behalf of the 20 Wyndham Defendants which would include Wyndham Hotels 21 and Resorts, Incorporated, Wyndham Hotel Group, LLC 22 and Hawthorn Suites Franchisee, which is the 23 franchisor of the Hawthorn Suites brand. The other 24 two entities are corporate affiliates. One of which 25 is a publicly traded company; the other one is just a Sheretta L. Martin, CSR - 162nd Civil District Court Phone: 214-653-6260 Email: slmartin@dallascounty.org PLAINTIFFS' MOTION TO COMPEL February 13, 2023 corporate affiliate. Factually, there are a couple of things that are incorrect