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Cause No.
River Oaks Property Owners, Inc.
Plaintiff
In the District Court of
Haidar Barbouti and
2300 River Oaks, Inc.
Harris County, Texas
Defendants,
Judicial District
Mark Shinder,
Intervenor.
Defendant’s Response in Opposition to Intervenor’s
Motion to CompelDefendants’ Disclosures
Defendant 2300 River Oaks Inc. Defendant”) files this Response in Opposition to
Intervenor’s Motion to Compel Defendants’ Disclosures (“Intervenor’s Motion”) Intervenor’s
Motion seeks to compel information that is not relevant to any party’s claims or defenses because
is not reasonably calculated to lead to the discovery of admissible evidence. Consequently,
Intervenor’s Motion must be denied.
Introduction
Defendant owns the property located at 2300 River Oaks Boulevard. Plaintiff River Oaks
Property Owners, Inc. (“ROPO”) asserts claims against Defendant related to a patio addition on
the North side of Defendant’s property and a garage extension on the South side of Defendant’s
property. ROPO alleges that Defendant’s improvements violate certain restrictive covenants
requiring that the patio addition be no nearer than 30 feet from the North property line and that the
Intervenor directs his motion to both 2300 River Oaks, Inc. and Haidar Barbouti; however, Mr. Barbouti
is no longer a party as there are no remaining claims against him.
Plaintiff’s Fourth Amended Petition.
garage extension be no nearer than 20 feet from the South property line. Similarly, Intervenor, who
owns the property to the South of Defendant, complains that the garage addition is an
encroachment that interferes with his enjoyment of his property. Intervenor also alleges that
Defendant is using its property for non residential purposes.
Defendant denied both ROPO’s and Intervenor’s claims and in response, lodged a number
of affirmative defenses, including inter alia, waiver, estoppel, and laches. Defendant contends
that ROPO approved the garage extension after confirming its height and that Intervenor knew of
the construction on Defendants’ property yet waited until a year after the project’s completion to
raise a complaint.
he disputed facts are limited to (1) where the improvement exist in relation to the
property lines, (2) whether those improvements were approved by ROPO, (3) when ROPO and
Shinder knew of the improvements, (4) whether the property at 2300 River Oaks is being used for
residential purposes, and (5) ROPO and Shinder’s alleged damages. Despite the limited nature
of the dispute, Intervenorseeks to multiply the scope of discoveryand asks the Court to compel
laundry list of irrelevant information from Defendant
Argumentand Authorities
Intervenor is entitled to discover “any unprivileged information that is relevant to the
subject of the action, even if it would be inadmissible at trial, as long as the information sought is
reasonably calculated to lead to the discovery of admissible evidence. In re Allstate Fire & Cas.
Ins. Co., 2021 Tex. App. LEXIS 71, *10 (Tex. App.Houston [14th Dist.] January 7, 2021) (orig.
proceeding) (citing In re Nat'l Lloyds Ins. Co., 507 S.W.3d 219, 223 (Tex. 2016) (orig. proceeding)
Intervenor’s Second Amended Petition.
Defendants’ Original Answer to Intervenor’s First Amended Petition.
(per curiam) (internal quotation marks and citations omitted, emphasis added Information is
relevant, and therefore discoverable, “if it tends to make the existence of a fact that is of
consequence to the determination of the action more or less probable.” Id. iting (Tex. R. Evid.
401). Materiality and relevance are determined by the pleadings; facts of consequence to the issues
raised by the pleadings are permissible areas of discovery. Id.see also Tex. R. Civ. P. 192.3(a).
Intervenor seeks to discover everyone ever involved in the construction to determine “how
the structure was created,” “why permits were not obtained,” “how they were paid,” and by whom,
although none of those facts is of consequence to the determination of the parties’ claims or
defenses outlined above. If for example, Defendant were to identify the contractor who installed
the cabinets in the garage extension and Intervenor were to depose him to learn he was paid $1,000
by Highland Village on September 1, 2021 by Highland Village no one would be any closer to
learning (1) where the garage extension is located in relation to the property lines, (2) whether the
garage extension was approved by ROPO, (3) when Intervenor knew of the garage extension, (4)
whether the garage extension is being used for non residential purposes, or (5) how Intervenor has
been damaged. The information related to each individual contractor is therefore not relevant and
not within the proper scope of discovery.
In support of his argument, Intervenor lodges numerous misrepresentation about the
discovery that has already been exchanged and about Defendant’s summary judgment positions.
Intervenor incorrectly suggest that Defendant has withheld documents related to the garage
extension’s structural engineer, Sandeep Patel To the contrary, Defendant has produced every
email exchanged with Mr. Patel, along with plans and invoices. Intervenor also nonsensically
Intervenor’s Motion at (Intervenor complains that Sandeep Patel could not recall all the individuals on
the construction site, although Defendant has produced all invoices for the work and does not control Mr.
Patel).
suggests that Defendant “claimed, in the summary judgment pleadings, he completed the
construction in record fashion before anyone even knew he was done.” Intervenor’s Motion at
Notably, Intervenor does not provide a citation to Defendant’s purported statement. In fact, such a
statement would be contrary to the statements that were included in Defendant’s summary
judgment response and are contrary to Intervenor’s own photographing of the garage extension
construction.
Beyond the names of every contractor, Intervenor also seeks the identi y of every security
guard who has patrolled Defendant’s property. Intervenor’s Motion at 3. Even taking the
statements in Intervenor's Motion as truealthough Defendant contends they are not only one
officer would be relevant: the “A. Hernandez” identified in Intervenor’s Exhibit E, to whom ROPO
claims to have provided a cease and desist letter. Defendant is not opposed to providing Mr.
Hernandez’s information but so far has been unable to locate it. Defendant will supplement its
disclosures related to Mr. Hernandez once the information is found.
Finally, Intervenor seeks to compel Defendant to include every employee of Highland
Village in its disclosures. Defendant has complied with the disclosure requirement and has
included every employee of Highland Village “with knowledge of relevant facts.” Intervenor’s
request for information on every employee, regardless of relevance, is inappropriate and should be
denied.
See e.g., Exhibit A (SHINDER 000001 000005, photographs taken by Intervenor during construction
of Defendant’s garage extension).
Tex. R. Civ. P. 194.2(b)(5) see also, Intervenor’s Exhibit A (2300 River Oaks Blvd., Inc.’s Amended
Disclosures identifying Highland Village employees Haidar Barbouti and Jeannie Pena and former
employee Petros Patrianakos).
Conclusion
Once again, Interveno raises a discovery dispute where one does not truly exist. Defendant
has complied with the disclosure requirements of the Texas Rules of Civil Procedure and has
provided relevant information. Intervenor seeks to unnecessarily multiply the scope of discovery
in the hope of fishing up something unseemly about the construction process or its funding. The
discovery rules prohibit such fishing expeditions so that discovery cannot be used to harass an
opposing party
Aside from the identity of a single police officer, who Defendant is working to identify,
none of the information Intervenor seeks to compel is relevant to any fact that is of consequence
to the determination of any party’s claims or defenses. Defendant therefore respectfully request
that the Court deny Intervenor’s Motion to Compel efendants’ Disclosures in their entirety.
Defendants also seek any other orfurther relief to which they are entitled.
Respectfully submitted,
Meade Neese& Barr LLP
/s/D. John Neese, Jr.
D. John Neese, Jr.
Texas Bar No. 24002678
Andrew K. Meade
Texas Bar No. 24032854
Holly Barnes
Texas Bar No.
Meade Neese & Barr LLP
2118 Smith Street
Houston, Texas 77002
(phone)
jneese@mnbllp.com
ameade@mnbllp.com
hbarnes@mnbllp.com
Attorney for Defendants
Certificate of Service
A true and correct copy of the foregoing document has been served on all counsel of record
pursuant to the Texas Rules of Civil Procedure on July 7
/s/D. John Neese, Jr.
D. John Neese, Jr.
Preview
Cause No. River Oaks Property Owners, Inc. Plaintiff In the District Court of Haidar Barbouti and 2300 River Oaks, Inc. Harris County, Texas Defendants, Judicial District Mark Shinder, Intervenor. Defendant’s Response in Opposition to Intervenor’s Motion to CompelDefendants’ Disclosures Defendant 2300 River Oaks Inc. Defendant”) files this Response in Opposition to Intervenor’s Motion to Compel Defendants’ Disclosures (“Intervenor’s Motion”) Intervenor’s Motion seeks to compel information that is not relevant to any party’s claims or defenses because is not reasonably calculated to lead to the discovery of admissible evidence. Consequently, Intervenor’s Motion must be denied. Introduction Defendant owns the property located at 2300 River Oaks Boulevard. Plaintiff River Oaks Property Owners, Inc. (“ROPO”) asserts claims against Defendant related to a patio addition on the North side of Defendant’s property and a garage extension on the South side of Defendant’s property. ROPO alleges that Defendant’s improvements violate certain restrictive covenants requiring that the patio addition be no nearer than 30 feet from the North property line and that the Intervenor directs his motion to both 2300 River Oaks, Inc. and Haidar Barbouti; however, Mr. Barbouti is no longer a party as there are no remaining claims against him. Plaintiff’s Fourth Amended Petition. garage extension be no nearer than 20 feet from the South property line. Similarly, Intervenor, who owns the property to the South of Defendant, complains that the garage addition is an encroachment that interferes with his enjoyment of his property. Intervenor also alleges that Defendant is using its property for non residential purposes. Defendant denied both ROPO’s and Intervenor’s claims and in response, lodged a number of affirmative defenses, including inter alia, waiver, estoppel, and laches. Defendant contends that ROPO approved the garage extension after confirming its height and that Intervenor knew of the construction on Defendants’ property yet waited until a year after the project’s completion to raise a complaint. he disputed facts are limited to (1) where the improvement exist in relation to the property lines, (2) whether those improvements were approved by ROPO, (3) when ROPO and Shinder knew of the improvements, (4) whether the property at 2300 River Oaks is being used for residential purposes, and (5) ROPO and Shinder’s alleged damages. Despite the limited nature of the dispute, Intervenorseeks to multiply the scope of discoveryand asks the Court to compel laundry list of irrelevant information from Defendant Argumentand Authorities Intervenor is entitled to discover “any unprivileged information that is relevant to the subject of the action, even if it would be inadmissible at trial, as long as the information sought is reasonably calculated to lead to the discovery of admissible evidence. In re Allstate Fire & Cas. Ins. Co., 2021 Tex. App. LEXIS 71, *10 (Tex. App.Houston [14th Dist.] January 7, 2021) (orig. proceeding) (citing In re Nat'l Lloyds Ins. Co., 507 S.W.3d 219, 223 (Tex. 2016) (orig. proceeding) Intervenor’s Second Amended Petition. Defendants’ Original Answer to Intervenor’s First Amended Petition. (per curiam) (internal quotation marks and citations omitted, emphasis added Information is relevant, and therefore discoverable, “if it tends to make the existence of a fact that is of consequence to the determination of the action more or less probable.” Id. iting (Tex. R. Evid. 401). Materiality and relevance are determined by the pleadings; facts of consequence to the issues raised by the pleadings are permissible areas of discovery. Id.see also Tex. R. Civ. P. 192.3(a). Intervenor seeks to discover everyone ever involved in the construction to determine “how the structure was created,” “why permits were not obtained,” “how they were paid,” and by whom, although none of those facts is of consequence to the determination of the parties’ claims or defenses outlined above. If for example, Defendant were to identify the contractor who installed the cabinets in the garage extension and Intervenor were to depose him to learn he was paid $1,000 by Highland Village on September 1, 2021 by Highland Village no one would be any closer to learning (1) where the garage extension is located in relation to the property lines, (2) whether the garage extension was approved by ROPO, (3) when Intervenor knew of the garage extension, (4) whether the garage extension is being used for non residential purposes, or (5) how Intervenor has been damaged. The information related to each individual contractor is therefore not relevant and not within the proper scope of discovery. In support of his argument, Intervenor lodges numerous misrepresentation about the discovery that has already been exchanged and about Defendant’s summary judgment positions. Intervenor incorrectly suggest that Defendant has withheld documents related to the garage extension’s structural engineer, Sandeep Patel To the contrary, Defendant has produced every email exchanged with Mr. Patel, along with plans and invoices. Intervenor also nonsensically Intervenor’s Motion at (Intervenor complains that Sandeep Patel could not recall all the individuals on the construction site, although Defendant has produced all invoices for the work and does not control Mr. Patel). suggests that Defendant “claimed, in the summary judgment pleadings, he completed the construction in record fashion before anyone even knew he was done.” Intervenor’s Motion at Notably, Intervenor does not provide a citation to Defendant’s purported statement. In fact, such a statement would be contrary to the statements that were included in Defendant’s summary judgment response and are contrary to Intervenor’s own photographing of the garage extension construction. Beyond the names of every contractor, Intervenor also seeks the identi y of every security guard who has patrolled Defendant’s property. Intervenor’s Motion at 3. Even taking the statements in Intervenor's Motion as truealthough Defendant contends they are not only one officer would be relevant: the “A. Hernandez” identified in Intervenor’s Exhibit E, to whom ROPO claims to have provided a cease and desist letter. Defendant is not opposed to providing Mr. Hernandez’s information but so far has been unable to locate it. Defendant will supplement its disclosures related to Mr. Hernandez once the information is found. Finally, Intervenor seeks to compel Defendant to include every employee of Highland Village in its disclosures. Defendant has complied with the disclosure requirement and has included every employee of Highland Village “with knowledge of relevant facts.” Intervenor’s request for information on every employee, regardless of relevance, is inappropriate and should be denied. See e.g., Exhibit A (SHINDER 000001 000005, photographs taken by Intervenor during construction of Defendant’s garage extension). Tex. R. Civ. P. 194.2(b)(5) see also, Intervenor’s Exhibit A (2300 River Oaks Blvd., Inc.’s Amended Disclosures identifying Highland Village employees Haidar Barbouti and Jeannie Pena and former employee Petros Patrianakos). Conclusion Once again, Interveno raises a discovery dispute where one does not truly exist. Defendant has complied with the disclosure requirements of the Texas Rules of Civil Procedure and has provided relevant information. Intervenor seeks to unnecessarily multiply the scope of discovery in the hope of fishing up something unseemly about the construction process or its funding. The discovery rules prohibit such fishing expeditions so that discovery cannot be used to harass an opposing party Aside from the identity of a single police officer, who Defendant is working to identify, none of the information Intervenor seeks to compel is relevant to any fact that is of consequence to the determination of any party’s claims or defenses. Defendant therefore respectfully request that the Court deny Intervenor’s Motion to Compel efendants’ Disclosures in their entirety. Defendants also seek any other orfurther relief to which they are entitled. Respectfully submitted, Meade Neese& Barr LLP /s/D. John Neese, Jr. D. John Neese, Jr. Texas Bar No. 24002678 Andrew K. Meade Texas Bar No. 24032854 Holly Barnes Texas Bar No. Meade Neese & Barr LLP 2118 Smith Street Houston, Texas 77002 (phone) jneese@mnbllp.com ameade@mnbllp.com hbarnes@mnbllp.com Attorney for Defendants Certificate of Service A true and correct copy of the foregoing document has been served on all counsel of record pursuant to the Texas Rules of Civil Procedure on July 7 /s/D. John Neese, Jr. D. John Neese, Jr.