Preview
FILED
7/8/2021 8:29 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Loaidi Grove DEPUTY
CAUSE NO. DC-20-16414
MARK RAY, M.D., IN THE DISTRICT COURT OF
ET AL.,
Plaintiffs
Vv. DALLAS COUNTY, TEXAS
OLIVER STREET DERMATOLOGY
MANAGEMENT, LLC, ET AL.
Defendants. 298th JUDICIAL DISTRICT
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ OBJECTIONS
TO ADMITTING GEOFF WAYNE’S DEPOSITION AND
PORTIONS OF PLAINTIFFS’ DECLARATIONS
Plaintiffs file this Response to the Specially Appearing Defendants’ objections
to (i) the admission of Geoff Wayne’s deposition taken in Selkin v. Derm Growth
Partners I, LLC, et al., Case No. DC-20-11616, in the 134th District Court of Dallas
County, Texas and (2) portions of Plaintiffs’ Declarations.
I
GEOFF WAYNE’S DEPOSITIONS
1 First, the Specially Appearing Defendants object to the inclusion of
Mr. Wayne’s jurisdictional deposition taken in a nearly identical case filed by Dr. Gil
Selkin’s (“Dr. Gil”) brother, Dr. Robert Selkin (“Dr. Bobby”). Mr. Wayne was the CEO
and/or representative of USDP’s (f/k/a Dermatology Associates) group of companies
in the transactions in which Dr. Gil and Dr. Bobby sold defendants their dermatology
practices at the same time. Declaration of Robert Selkin, Ex. BS at 4 6-10; Declaration
1| Plaintiffs’ Response to Defendants’ Objections
to Admitting Geoff Wayne’s Deposition and
Portions of Plaintiffs’ Declarations
of Gilbert Selkin!, Ex. GS at § 6-12. They even cross-guaranteed portions of one
another’s Asset Purchase Agreement performance. See Ex. GS-1 (introductory
recital); Ex. BS-3 (same). A few months before Dr. Gil and the other plaintiffs filed
this suit, Dr. Bobby sued the same defendants alleging identical fraud claims. In
Dr. Bobby’s case, the same Specially Appearing Defendants filed a nearly identical
Special Appearance. Their Special Appearance in Dr. Bobby’s case is set for hearing
in ten (10) days on July 19, 2021. Wayne’s jurisdictional deposition in Dr. Bobby’s
case, which was taken by Rule 11 agreement of counsel for Dr. Bobby and the
Specially Appearing Defendants (the same counsel as this case), is admissible against
these same Specially Appearing Defendants in this case.
2 First, Geoff Wayne’s deposition is a statement of a party opponent.
T.R.E. 801(e)(2) provides that a statement offered against an opposing party is not
hearsay if it “(A) was made by the party in an individual or representative capacity;”
“(B) is one the party manifested that it adopted or believed to be true;” (C) was made
by a person whom the party authorized to make a statement on the subject;” or
“(D) was made by the party’s agent or employee on a matter within the scope of that
relationship and while it existed.” Each of these hearsay exceptions applies to make
Wayne’s deposition admissible.
‘ Plaintiffs incorporate their exhibits from their Response to the Specially Appearing Defendants’
Special Appearance under Texas Rule of Civil Procedure 58 and cite to the exhibits as referenced
therein.
2| Plaintiffs’ Response Ho Die fein dain tsi Objections
to Admitting Geoff Wayne’s Deposition and
Portions of Plaintiffs’ Declarations
3. The Specially Appearing Defendants (through the same counsel) agreed,
via Rule 11 Agreement, to present Wayne and authorized him to testify on the topic
of jurisdiction:
. ‘The Specially Appearing Defendants will make Geoff Wayne available for three
hours ofdeposition testimony on a mutually agreed date before December 30,
2020. Mr. Wayne’s deposition will take place via Zoom or similar remote
platform and will be limited by subject matter to the issues of general or specific
personal jurisdiction asserted in the Special Appearance.
Ex. 1. In fact, the Specially Appearing Defendants limited Wayne’s deposition
testimony to jurisdiction issues barring court approval for additional depositions.
Plaintiffs’ counsel agreed the Specially Appearing Defendants could present Wayne,
in particular, because he was the person alleged to be most knowledgeable to testify
regarding jurisdiction—especially specific jurisdiction for the fraud on Texas doctors
in the sale of their Texas practices. Indeed, he was the lead negotiator and defendants’
CEO during the relevant time period. See e.g., Ex. BS at {| 6-19; BS-2, BS-21 (Geoff
Wayne’s offers to Dr. Bobby and Dr. Gil as CEO for DA/USDP). Wayne similarly led
negotiations for the Trinity group sale (Ex. MR-5) and Matter/Lockhart’s sale
(Ex. CM at § 9-13). Importantly, he negotiated both the cash and equity portions of
the transactions (and made false statements and omissions in connection with the
equity in USDP/DGI Units).?
2 The Specially Appearing Defendants refer to DGI as “Derm Growth” in their Special Appearance.
3| Plaintiffs’ Response to Defendants’ Objections
to Admitting Geoff Wayne’s Deposition and
Portions of Plaintiffs’ Declarations
4 The Specially Appearing Defendants, by selecting Wayne to testify as
to general and specific jurisdictional matters and then presenting him for
deposition for these purposes, made him a person “authorized [by the Specially
Appearing Defendants] to make a statement on the subject.” The Specially Appearing
Defendants’ objection to the deposition testimony is the height of gamesmanship and
an attempt to keep out key jurisdictional facts.
5. Contrary to the Specially Appearing Defendants’ Special Appearance
argument, Geoff Wayne agreed in his deposition that: (1) USDP was headquartered
in Texas and that he was at least the CEO of DGI (the USDP entity that issued the
equity) and CEO of Oliver Street Dermatology Holdings; Ex. GW at 80:3-21; (2) he
negotiated both the cash and equity portions of the transaction to purchase the
practices; Ex. GW at 69:15-70:1; and (3) he was authorized by DGI to negotiate the
material terms of the equity. Ex. GW 37:1-15. These admissions are fatal to DGI and
OSDH’s special appearances.
6 Second, the Specially Appearing Defendants adopted Wayne’s testimony
by citing it in their Reply to Plaintiffs’ Response to the Special Appearance. The
deposition is thus admissible under T.R.E. 806 to attack Wayne’s credibility as if
Wayne had testified. T.R.E. 806 further provides that “[t]he Court may admit
evidence of the declarant’s statement or conduct, offered to impeach the declarant,
regardless of when it occurred... .” The Specially Appearing Defendants cannot
simultaneously rely on the deposition testimony and reject it as hearsay.
4|Plaintiffs’ Response to Defendants’ Objections
to Admitting Geoff Wayne’s Deposition and
Portions of Plaintiffs’ Declarations
7 Third, Wayne’s statements as CEO, agent and representative of the
USDP companies both at the time of the transactions, and as representative of the
Specially Appearing Defendants at the time of his deposition, are effectively
admissions by the Specially Appearing Defendants and are inconsistent with the
Specially Appearing Defendants’ affidavits of Paul Singh. Trencor Inc. v. Cornech
Mach. Co., 1158.W.3d 145, 151 (Tex.App.—Fort Worth 2003, pet. denied) (A
statement by a party’s agent or servant concerning a matter within the scope of his
agency or employment and made during the existence of the relationship may be
offered as an admission by the party itself.) Here, Wayne’s status as CEO and/or
agent for the USDP companies in connection with the transactions, including DGI
and OSDH, is established both by Declarations of Plaintiffs, Robert Selkin and by
Wayne’s own sworn testimony. Even more, the Special Appearing Defendants failed
to offer evidence that Wayne was not the agent or representative of USDP or its
individual companies. Therefore, Wayne’s deposition testimony is admissible under
both T.R.E. 801(e)(1) and (e)(2).
8. Lastly, Wayne’s deposition testimony is admissible because Wayne is
unavailable for the hearing by process or other reasonable means to procure his
attendance at the hearing. Plaintiffs attempted to serve Wayne, both individually and
as a party to the case through his counsel. (Affidavit of Process Server at Ex. 2; email
from Wayne’s counsel at Ex. 3). As such, Wayne’s former deposition testimony is
admissible under T.R.E. 804(a)(5) and (b)(1).
5| Plaintiffs’ Response to le fem dain
tsi Objections
to Admitting Geoff Wayne’s Deposition and
Portions of Plaintiffs’ Declarations
Il.
PLAINTIFFS’ DECLARATIONS
9. The Specially Appearing Defendants inexplicably object to portions of
the Plaintiffs’ Declarations. Each respective Plaintiffs’ Declaration (and that of Matt
Parks and Robert Selkin), however, is based upon the personal knowledge of the
declarant and cites the source of such knowledge. The Plaintiffs’ and Robert Selkins’
Declarations also show the bases for their personal knowledge—which are (i) the oral
statements by Geoff Wayne, Scott Wells and other officers of USDP and its entities
at the time of the transaction; (ii) emails and correspondence from these individuals;
and (iii) materials provided by Wayne, Wells, and other officers during the course of
negotiations for the transactions and thereafter to the declarants when they were
owners of USDP (through its top company DGI, which the Specially Appearing
Defendants refer to as Derm Growth). As such, the Declarations meet the criteria for
proper declarations. Stone v. Midland Multifamily Equity REIT, 334 8.W.3d 371, 375
(Tex.App.—Dallas 2011, not pet.); Keulin v. Arias, 274 S.W.3d 666, 667 (Tex. 2008).
PRAYER
10. Plaintiffs ask the Court to overrule Specially Appearing Defendants’
objections to Wayne’s deposition testimony and portions of Plaintiffs’ Declarations in
support of their response.
6|Plaintiffs’ Response to Defendants’ Objections
to Admitting Geoff Wayne’s Deposition and
Portions of Plaintiffs’ Declarations
Respectfully submitted,
Burford Perry, LLP
/s/ Robert R. Burford
Robert R. Burford
State Bar No. 03371700
Matt E. Parks
State Bar No. 24083622
909 Fannin St., Suite 2630
Houston, Texas 77010
Telephone: (713) 401-9790
Facsimile: (713) 993-7739
rburford@burfordperry.com
mparks@burfordperry.com
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
I certify that the above-document was served upon all counsel of record via the
Court’s efiling system on July 8, 2021.
/s/ Robert R. Burford
Matt E. Parks
7|[Plaintiffs’ Response to Defendants’ Objections
to Admitting Geoff Wayne’s Deposition and
Portions of Plaintiffs’ Declarations
FILED
EXHIBIT,do 8/2020 8:34 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
SIDLEY AUSTIN LLP. Margaret Thomas DEPUTY
SIDLEY
2021 MCKINNEY AVENUE
SUITE 2000
DALLAS, TX 75201
+1214 981 3300
+1 214 981 3400 FAX
+1214 981 3434
BARMBRUSTER@SIDLEY.COM
AMERICA * ASIA PACIFIC » EUROPE
October 28, 2020
RULE 11 AGREEMENT
By Email
Matt E. Parks
Burford Perry, LLP
909 Fannin Street, Suite 2630
Houston, Texas 77010
mparks@burfordperry.com
Re: Selkin v. Oliver Street Dermatology Management LLC, et al., No. DC-20-11616
(134th Dist. Ct., Dallas County, Tex. filed Aug. 19, 2020)
Dear Matt,
Pursuant to Rule 11 of the Texas Rules of Civil Procedure, specially appearing
Defendants Derm Growth Partners I, LLC, Derm Growth Partners II, LLC, Derm Growth
Partners III, LLC, and Oliver Street Dermatology Holdings LLC (collectively, “Specially
Appearing Defendants”)! and Plaintiffs Robert P. Selkin and Nicole Reed Medical, PLLC
(“Nicole Reed” and, together with Dr. Selkin, “Plaintiffs” and, collectively with the Specially
Appearing Defendants, the “Parties”) hereby enter the following agreement (the “Agreement”):
. Plaintiffs will immediately (i) withdraw their Emergency Motion to Continue
Hearing on Specially Appearing Defendants’ Special Appearance and Motion to
Dismiss, filed October 23, 2020, and (ii) take down the emergency hearing
thereon set for October 28, 2020, at 8:30 AM CT (the “Continuance Hearing”).
After Plaintiffs have taken down the Continuance Hearing and filed this
Agreement, the Specially Appearing Defendants will take down the November 2,
2020 hearing on their Special Appearance and Motion to Dismiss for Lack of
Personal Jurisdiction, filed October 12, 2020 (the “Special Appearance”), and
reset the Special Appearance for a date no later than January 29, 2021.
—
The Specially Appearing Defendants specially appear, subject to, and without waiving, their pending Motions to
Dismiss or their ability to assert any defense to this action, including, but not limited to, their rights to move to
dismiss based on jurisdiction, arbitration, venue, and/or failure to state a claim. Defendants reserve all rights.
Sidley Austin (TX) LLP is a Delaware limited labilty partnership doing business as Sidley Austin L P and practicing in afilation with other Sidley Austin partnerships,
ACTIVE 262552060
EXHIBIT 1
SIDLEY
Page 2
. The Specially Appearing Defendants will produce by November 30, 2020, the
documents described below, if such documents exist and are not privileged or
otherwise immune from discovery:
° Documents sufficient to show the officers for each Specially Appearing
Defendant, along with the location where they work;
Documents sufficient to show whether Boston is the principal place of
business ofthe Specially Appearing Defendants;
Documents sufficient to show which entity or entities Geoff Wayne and
Scott Wells were affiliated with;
Documents showing whether each Specially Appearing Defendant has
property leases/holdings (proofof physical office(s)), pays property taxes,
holds bank accounts (redacted except for last 4 account numbers), or has
phone lines/numbers in Boston or Texas;
Documents sufficient to show whether individuals that are also
representatives/officers/agents of the Specially Appearing Defendants
were part of the defendants’ decision making, negotiation, or due diligence
process to acquire the assets of Nicole Reed, and the position or office that
such persons hold with any of the Specially Appearing Defendants and
Oliver Street Dermatology Management LLC; and
The Specially Appearing Defendants’ company resolutions, executed
consents, or similar documents regarding purchasing Nicole Reed or
Dr. Selkin’s equity acquisitions.
The Specially Appearing Defendants will make Geoff Wayne available for three
hours of deposition testimony on a mutually agreed date before December 30,
2020. Mr. Wayne’s deposition will take place via Zoom or similar remote
platform and will be limited by subject matter to the issues of general or specific
personal jurisdiction asserted in the Special Appearance.
By entering into this Agreement, Plaintiffs reserve their rights to request or seek
the production of additional jurisdictional discovery from the Specially Appearing
Defendants and do not waive their ability to seek additional jurisdictional
discovery from the other Defendants. Defendants reserve their rights to object to
such discovery.
The Parties agree to confer on a reasonable briefing schedule that will permit the
Special Appearance to be heard by no later than January 29, 2021, provided that
ACTIVE 262552061
EXHIBIT1
SIDLEY
Page 3
the Specially Appearing Defendants comply with this Agreement and there is no
good faith dispute regarding outstanding jurisdictional discovery pending before
the Court.
Plaintiffs agree to refrain from serving or otherwise pursuing any non-
jurisdictional discovery in this action until the resolution of the Specially
Appearing Defendants’ challenge to this Court’s jurisdiction.
Ifthis letter accurately reflects our agreement, please sign in the space provided below
and return a copy to me for further handling.
Sincerely,
/s/ Barret V. Armbruster
Barret V. Armbruster
Associate
Counsel for Specially Appearing Defendants
AGREED AND ACCEPTED
/s/ Matt E. Parks 10/28/20
Matt E. Parks Date
Counsel for Plaintiff
ce: Yvette Ostolaza
Penny P. Reid
Robert R. Burford
ACTIVE 262552060
EXHIBIT 2
CAUSE NO. DC-20-16414
MARK RAY, M.D., ET AL. IN THE COURT OF
Plaintiff,
VS, DALLAS COUNTY, TEXAS
OLIVER STREET DERMATOLOGY MANAGEMENT, LLC,
ETAL.
Defendant. IN THE 298TH JUDICIAL DISTRICT
AFFIDAVIT OF DUE DILIGENCE
On this day personally appeared Mauricio Segovia who, being by me duly sworn, deposed and said:
"The following came to hand on Jul 7, 2021, 4:36 pm,
SUBPOENA,
For delivery to Geoff L. Wayne c/o Yvette Ostolaza or c/o Penny P. Reid at Sidley Austin LLP
1) Unsuccessful Attempt: Jul 8, 2021, 10:21 am CDT at SIDLEY AUSTIN LLP: 2021 MCKINNEY AVE SUITE 2000, DALLAS, TX
75201-1846 McKinney & Olive Building Security (Controlled Access Elevators)
| spoke with the security officer, Penny Howard. Ms. Howard used the lobby phone to contact a person named "Beth"
who was at Suite 2000. Beth placed Ms. Howard on hold and several minutes later informed Ms. Howard that no one was
in the office to accept service and that neither Yvette Ostolaza nor Penny Reid were in the office but were working from
home. | left my contact information with security to forward to Sidley Austin LLP
2) Unsuccessful Attempt:Jul 8, 2021, 11:38 am CDT at HOME: 6623 NORWAY RD, DALLAS, TX 75230-5243
The interior lights were on. No response from the Ring security video doorbell. Since there was no answer a delivery
notice with a telephone number was posted on the front door, No vehicles were parked on the driveway. The following
vehicle was parked in front of the residence:TX Tag MYW4147 registered to SARA MOYA
3) Unsuccessful Attempt:Jul 8, 2021, 12:25 pm CDT at SIDLEY AUSTIN LLP: 2021 MCKINNEY AVE SUITE 2000, DALLAS, TX
75201-1846 McKinney & Olive Building Security (Controlled Access)
| spoke with the security officer, Nick, who telephoned Sidley Austin and was told that they were going to send someone
downstairs even though the officer specifically asked for Margaret Allen. At 12:41 pm Jim Cook came downstairs to tell
me that Margaret Allen was not in the office and that they will not accept process service. He then walked away.
lam a person over eighteen (18) years of age and! am competent to make this affidavit. | am a resident of the State of
Texas. | am familiar with the Texas Rules of Civil Procedure as they apply to service of Process. | am not a partyto this
sult nor related or affiliated with any herein, and have no interest in the outcome of the suit. | have never been convicted
of a felony or of a misdemeanor involving moral turpitude. | have personal knowledge of the facts stated herein and they
are true and correct.”
Ufhor
EXHIBIT 2
LL LiL
Mv io Sege
Certificatic
Certification Expl 12022
BEFORE ME, a Notary Public, on this day personally appeared Mauricio Segovia, known to me to be the person whose
name is subscribed to the foregoing document and, being by me first duly sworn, declared that the statements therein
contained are within his or her personal knowledge and are true and correct.
UBSCRIBED
AND SWORN TO ME ON Zi
— an Notary Ps lic, State of Tex;
M. SEGOVIA
Epa8 28
My Notary ID # 129480220
Li aes
EXHIBIT 3
From: Ostolaza, Yvette
To: Matt Parks; ; Reid, Penny
Ce:
Subject: RE: Trinity et al v DG et al
Date: ‘Thursday, July 8, 2021 11:57:47 AM
Attachments:
As you know, | am in trial and Penny is out of state.
We have not spoken to Wayne to seek authority and I think you are too late. I don’t even know where he is this summer.
Ye
Sent with BlackBerry Work
(www. blackberry.com)
From: Matt Parks
Date: Thursday, Jul 08, 2021, 11:47 AM
T 'stolaza, Yvette < >, Allen, Margaret , Reid, Penny
Ce: Robert Burford
Subject: Trinity et al v DGI et al
Counsel,
Under Tex R Civ P 176.5(a), counsel for a party may be served with a subpoena for the party’s appearance. Will you agree to accept
service of a subpoena for Geoff Wayne's appearance at tomorrow's hearing? Please let us know.
Also, this should not be read as agreeing that Geoff Wayne’s deposition in Bobby Selkin’s case is not admissible in the Trinity
matter. As you'd guess, we believe it is.
Thank you,
Matt Parks
Partner
Burford Perry, LLP
2 Houston Center | 909 Fannin St., Ste 2630
Houston, Texas 77
(office) 713-401-9790 | (fax) 713-993-7739
(cell) 713-899-7052
|
Isp uobeSddcbedddclbbccdiccbcddlleblidcdlieecdibiceiiiocievcdbieccddiibbetrcilieeobbceceiiectick
This e-mail is sent by a law firm and may contain information that is privileged or confidential.
If you are not the intended recipient, please delete the e-mail and any attachments and notify us
immediately.
JES SSIS I AOSD ISEB ISIS IASB SISOS IOS DES ISOS A ISB SCSI IDOE RII SBOCI IIIS SERA IISA III
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Vicki Domingues on behalf of Robert Burford
Bar No. 3371700
vdomingues@burfordperry.com
Envelope ID: 55179986
Status as of 7/12/2021 11:04 AM CST
Associated Case Party: MARK RAY
Name BarNumber | Email TimestampSubmitted Status
Robert R.Burford rburford@burfordperry.com 7/8/2021 8:29:57 PM SENT
Matt E.Parks mparks@pburfordperry.com 7/8/2021 8:29:57 PM SENT
Burford Perry Service service@burfordperry.com 7/8/2021 8:29:57 PM SENT
Associated Case Party: OLIVER STREET DERMATOLOGY HOLDINGS LLC
Name BarNumber Email TimestampSubmitted | Status
Margaret Allen margaret.allen@sidley.com | 7/8/2021 8:29:57 PM SENT
Associated Case Party: DERM GROWTH PARTNERS |, LLC
Name BarNumber | Email TimestampSubmitted Status
Penny P. Reid preid@sidley.com 7/8/2021 8:29:57 PM SENT
Barret Armbruster barmbruster@sidley.com 7/8/2021 8:29:57 PM SENT
Patrick Foley patrick.foley@sidley.com 7/8/2021 8:29:57 PM SENT
Mitchell BrantAlleluia-Feinberg malleluiafeinberg@sidley.com 7/8/2021 8:29:57 PM SENT
Yvette Ostolaza yvette.ostolaza@sidley.com 7/8/2021 8:29:57 PM SENT
Sophie V.Franks sfranks@sidley.com 7/8/2021 8:29:57 PM SENT
Case Contacts
Name
TX Efiling Notice
Nancy Cade
Crystal Clark
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Vicki Domingues on behalf of Robert Burford
Bar No. 3371700
vdomingues@burfordperry.com
Envelope ID: 55179986
Status as of 7/12/2021 11:04 AM CST
Case Contacts
Diane Padilla dpadilla@sidley.com 7/8/2021 8:29:57 PM SENT
Preview
FILED 7/8/2021 8:29 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Loaidi Grove DEPUTY CAUSE NO. DC-20-16414 MARK RAY, M.D., IN THE DISTRICT COURT OF ET AL., Plaintiffs Vv. DALLAS COUNTY, TEXAS OLIVER STREET DERMATOLOGY MANAGEMENT, LLC, ET AL. Defendants. 298th JUDICIAL DISTRICT PLAINTIFFS’ RESPONSE TO DEFENDANTS’ OBJECTIONS TO ADMITTING GEOFF WAYNE’S DEPOSITION AND PORTIONS OF PLAINTIFFS’ DECLARATIONS Plaintiffs file this Response to the Specially Appearing Defendants’ objections to (i) the admission of Geoff Wayne’s deposition taken in Selkin v. Derm Growth Partners I, LLC, et al., Case No. DC-20-11616, in the 134th District Court of Dallas County, Texas and (2) portions of Plaintiffs’ Declarations. I GEOFF WAYNE’S DEPOSITIONS 1 First, the Specially Appearing Defendants object to the inclusion of Mr. Wayne’s jurisdictional deposition taken in a nearly identical case filed by Dr. Gil Selkin’s (“Dr. Gil”) brother, Dr. Robert Selkin (“Dr. Bobby”). Mr. Wayne was the CEO and/or representative of USDP’s (f/k/a Dermatology Associates) group of companies in the transactions in which Dr. Gil and Dr. Bobby sold defendants their dermatology practices at the same time. Declaration of Robert Selkin, Ex. BS at 4 6-10; Declaration 1| Plaintiffs’ Response to Defendants’ Objections to Admitting Geoff Wayne’s Deposition and Portions of Plaintiffs’ Declarations of Gilbert Selkin!, Ex. GS at § 6-12. They even cross-guaranteed portions of one another’s Asset Purchase Agreement performance. See Ex. GS-1 (introductory recital); Ex. BS-3 (same). A few months before Dr. Gil and the other plaintiffs filed this suit, Dr. Bobby sued the same defendants alleging identical fraud claims. In Dr. Bobby’s case, the same Specially Appearing Defendants filed a nearly identical Special Appearance. Their Special Appearance in Dr. Bobby’s case is set for hearing in ten (10) days on July 19, 2021. Wayne’s jurisdictional deposition in Dr. Bobby’s case, which was taken by Rule 11 agreement of counsel for Dr. Bobby and the Specially Appearing Defendants (the same counsel as this case), is admissible against these same Specially Appearing Defendants in this case. 2 First, Geoff Wayne’s deposition is a statement of a party opponent. T.R.E. 801(e)(2) provides that a statement offered against an opposing party is not hearsay if it “(A) was made by the party in an individual or representative capacity;” “(B) is one the party manifested that it adopted or believed to be true;” (C) was made by a person whom the party authorized to make a statement on the subject;” or “(D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed.” Each of these hearsay exceptions applies to make Wayne’s deposition admissible. ‘ Plaintiffs incorporate their exhibits from their Response to the Specially Appearing Defendants’ Special Appearance under Texas Rule of Civil Procedure 58 and cite to the exhibits as referenced therein. 2| Plaintiffs’ Response Ho Die fein dain tsi Objections to Admitting Geoff Wayne’s Deposition and Portions of Plaintiffs’ Declarations 3. The Specially Appearing Defendants (through the same counsel) agreed, via Rule 11 Agreement, to present Wayne and authorized him to testify on the topic of jurisdiction: . ‘The Specially Appearing Defendants will make Geoff Wayne available for three hours ofdeposition testimony on a mutually agreed date before December 30, 2020. Mr. Wayne’s deposition will take place via Zoom or similar remote platform and will be limited by subject matter to the issues of general or specific personal jurisdiction asserted in the Special Appearance. Ex. 1. In fact, the Specially Appearing Defendants limited Wayne’s deposition testimony to jurisdiction issues barring court approval for additional depositions. Plaintiffs’ counsel agreed the Specially Appearing Defendants could present Wayne, in particular, because he was the person alleged to be most knowledgeable to testify regarding jurisdiction—especially specific jurisdiction for the fraud on Texas doctors in the sale of their Texas practices. Indeed, he was the lead negotiator and defendants’ CEO during the relevant time period. See e.g., Ex. BS at {| 6-19; BS-2, BS-21 (Geoff Wayne’s offers to Dr. Bobby and Dr. Gil as CEO for DA/USDP). Wayne similarly led negotiations for the Trinity group sale (Ex. MR-5) and Matter/Lockhart’s sale (Ex. CM at § 9-13). Importantly, he negotiated both the cash and equity portions of the transactions (and made false statements and omissions in connection with the equity in USDP/DGI Units).? 2 The Specially Appearing Defendants refer to DGI as “Derm Growth” in their Special Appearance. 3| Plaintiffs’ Response to Defendants’ Objections to Admitting Geoff Wayne’s Deposition and Portions of Plaintiffs’ Declarations 4 The Specially Appearing Defendants, by selecting Wayne to testify as to general and specific jurisdictional matters and then presenting him for deposition for these purposes, made him a person “authorized [by the Specially Appearing Defendants] to make a statement on the subject.” The Specially Appearing Defendants’ objection to the deposition testimony is the height of gamesmanship and an attempt to keep out key jurisdictional facts. 5. Contrary to the Specially Appearing Defendants’ Special Appearance argument, Geoff Wayne agreed in his deposition that: (1) USDP was headquartered in Texas and that he was at least the CEO of DGI (the USDP entity that issued the equity) and CEO of Oliver Street Dermatology Holdings; Ex. GW at 80:3-21; (2) he negotiated both the cash and equity portions of the transaction to purchase the practices; Ex. GW at 69:15-70:1; and (3) he was authorized by DGI to negotiate the material terms of the equity. Ex. GW 37:1-15. These admissions are fatal to DGI and OSDH’s special appearances. 6 Second, the Specially Appearing Defendants adopted Wayne’s testimony by citing it in their Reply to Plaintiffs’ Response to the Special Appearance. The deposition is thus admissible under T.R.E. 806 to attack Wayne’s credibility as if Wayne had testified. T.R.E. 806 further provides that “[t]he Court may admit evidence of the declarant’s statement or conduct, offered to impeach the declarant, regardless of when it occurred... .” The Specially Appearing Defendants cannot simultaneously rely on the deposition testimony and reject it as hearsay. 4|Plaintiffs’ Response to Defendants’ Objections to Admitting Geoff Wayne’s Deposition and Portions of Plaintiffs’ Declarations 7 Third, Wayne’s statements as CEO, agent and representative of the USDP companies both at the time of the transactions, and as representative of the Specially Appearing Defendants at the time of his deposition, are effectively admissions by the Specially Appearing Defendants and are inconsistent with the Specially Appearing Defendants’ affidavits of Paul Singh. Trencor Inc. v. Cornech Mach. Co., 1158.W.3d 145, 151 (Tex.App.—Fort Worth 2003, pet. denied) (A statement by a party’s agent or servant concerning a matter within the scope of his agency or employment and made during the existence of the relationship may be offered as an admission by the party itself.) Here, Wayne’s status as CEO and/or agent for the USDP companies in connection with the transactions, including DGI and OSDH, is established both by Declarations of Plaintiffs, Robert Selkin and by Wayne’s own sworn testimony. Even more, the Special Appearing Defendants failed to offer evidence that Wayne was not the agent or representative of USDP or its individual companies. Therefore, Wayne’s deposition testimony is admissible under both T.R.E. 801(e)(1) and (e)(2). 8. Lastly, Wayne’s deposition testimony is admissible because Wayne is unavailable for the hearing by process or other reasonable means to procure his attendance at the hearing. Plaintiffs attempted to serve Wayne, both individually and as a party to the case through his counsel. (Affidavit of Process Server at Ex. 2; email from Wayne’s counsel at Ex. 3). As such, Wayne’s former deposition testimony is admissible under T.R.E. 804(a)(5) and (b)(1). 5| Plaintiffs’ Response to le fem dain tsi Objections to Admitting Geoff Wayne’s Deposition and Portions of Plaintiffs’ Declarations Il. PLAINTIFFS’ DECLARATIONS 9. The Specially Appearing Defendants inexplicably object to portions of the Plaintiffs’ Declarations. Each respective Plaintiffs’ Declaration (and that of Matt Parks and Robert Selkin), however, is based upon the personal knowledge of the declarant and cites the source of such knowledge. The Plaintiffs’ and Robert Selkins’ Declarations also show the bases for their personal knowledge—which are (i) the oral statements by Geoff Wayne, Scott Wells and other officers of USDP and its entities at the time of the transaction; (ii) emails and correspondence from these individuals; and (iii) materials provided by Wayne, Wells, and other officers during the course of negotiations for the transactions and thereafter to the declarants when they were owners of USDP (through its top company DGI, which the Specially Appearing Defendants refer to as Derm Growth). As such, the Declarations meet the criteria for proper declarations. Stone v. Midland Multifamily Equity REIT, 334 8.W.3d 371, 375 (Tex.App.—Dallas 2011, not pet.); Keulin v. Arias, 274 S.W.3d 666, 667 (Tex. 2008). PRAYER 10. Plaintiffs ask the Court to overrule Specially Appearing Defendants’ objections to Wayne’s deposition testimony and portions of Plaintiffs’ Declarations in support of their response. 6|Plaintiffs’ Response to Defendants’ Objections to Admitting Geoff Wayne’s Deposition and Portions of Plaintiffs’ Declarations Respectfully submitted, Burford Perry, LLP /s/ Robert R. Burford Robert R. Burford State Bar No. 03371700 Matt E. Parks State Bar No. 24083622 909 Fannin St., Suite 2630 Houston, Texas 77010 Telephone: (713) 401-9790 Facsimile: (713) 993-7739 rburford@burfordperry.com mparks@burfordperry.com Attorneys for Plaintiffs CERTIFICATE OF SERVICE I certify that the above-document was served upon all counsel of record via the Court’s efiling system on July 8, 2021. /s/ Robert R. Burford Matt E. Parks 7|[Plaintiffs’ Response to Defendants’ Objections to Admitting Geoff Wayne’s Deposition and Portions of Plaintiffs’ Declarations FILED EXHIBIT,do 8/2020 8:34 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS SIDLEY AUSTIN LLP. Margaret Thomas DEPUTY SIDLEY 2021 MCKINNEY AVENUE SUITE 2000 DALLAS, TX 75201 +1214 981 3300 +1 214 981 3400 FAX +1214 981 3434 BARMBRUSTER@SIDLEY.COM AMERICA * ASIA PACIFIC » EUROPE October 28, 2020 RULE 11 AGREEMENT By Email Matt E. Parks Burford Perry, LLP 909 Fannin Street, Suite 2630 Houston, Texas 77010 mparks@burfordperry.com Re: Selkin v. Oliver Street Dermatology Management LLC, et al., No. DC-20-11616 (134th Dist. Ct., Dallas County, Tex. filed Aug. 19, 2020) Dear Matt, Pursuant to Rule 11 of the Texas Rules of Civil Procedure, specially appearing Defendants Derm Growth Partners I, LLC, Derm Growth Partners II, LLC, Derm Growth Partners III, LLC, and Oliver Street Dermatology Holdings LLC (collectively, “Specially Appearing Defendants”)! and Plaintiffs Robert P. Selkin and Nicole Reed Medical, PLLC (“Nicole Reed” and, together with Dr. Selkin, “Plaintiffs” and, collectively with the Specially Appearing Defendants, the “Parties”) hereby enter the following agreement (the “Agreement”): . Plaintiffs will immediately (i) withdraw their Emergency Motion to Continue Hearing on Specially Appearing Defendants’ Special Appearance and Motion to Dismiss, filed October 23, 2020, and (ii) take down the emergency hearing thereon set for October 28, 2020, at 8:30 AM CT (the “Continuance Hearing”). After Plaintiffs have taken down the Continuance Hearing and filed this Agreement, the Specially Appearing Defendants will take down the November 2, 2020 hearing on their Special Appearance and Motion to Dismiss for Lack of Personal Jurisdiction, filed October 12, 2020 (the “Special Appearance”), and reset the Special Appearance for a date no later than January 29, 2021. — The Specially Appearing Defendants specially appear, subject to, and without waiving, their pending Motions to Dismiss or their ability to assert any defense to this action, including, but not limited to, their rights to move to dismiss based on jurisdiction, arbitration, venue, and/or failure to state a claim. Defendants reserve all rights. Sidley Austin (TX) LLP is a Delaware limited labilty partnership doing business as Sidley Austin L P and practicing in afilation with other Sidley Austin partnerships, ACTIVE 262552060 EXHIBIT 1 SIDLEY Page 2 . The Specially Appearing Defendants will produce by November 30, 2020, the documents described below, if such documents exist and are not privileged or otherwise immune from discovery: ° Documents sufficient to show the officers for each Specially Appearing Defendant, along with the location where they work; Documents sufficient to show whether Boston is the principal place of business ofthe Specially Appearing Defendants; Documents sufficient to show which entity or entities Geoff Wayne and Scott Wells were affiliated with; Documents showing whether each Specially Appearing Defendant has property leases/holdings (proofof physical office(s)), pays property taxes, holds bank accounts (redacted except for last 4 account numbers), or has phone lines/numbers in Boston or Texas; Documents sufficient to show whether individuals that are also representatives/officers/agents of the Specially Appearing Defendants were part of the defendants’ decision making, negotiation, or due diligence process to acquire the assets of Nicole Reed, and the position or office that such persons hold with any of the Specially Appearing Defendants and Oliver Street Dermatology Management LLC; and The Specially Appearing Defendants’ company resolutions, executed consents, or similar documents regarding purchasing Nicole Reed or Dr. Selkin’s equity acquisitions. The Specially Appearing Defendants will make Geoff Wayne available for three hours of deposition testimony on a mutually agreed date before December 30, 2020. Mr. Wayne’s deposition will take place via Zoom or similar remote platform and will be limited by subject matter to the issues of general or specific personal jurisdiction asserted in the Special Appearance. By entering into this Agreement, Plaintiffs reserve their rights to request or seek the production of additional jurisdictional discovery from the Specially Appearing Defendants and do not waive their ability to seek additional jurisdictional discovery from the other Defendants. Defendants reserve their rights to object to such discovery. The Parties agree to confer on a reasonable briefing schedule that will permit the Special Appearance to be heard by no later than January 29, 2021, provided that ACTIVE 262552061 EXHIBIT1 SIDLEY Page 3 the Specially Appearing Defendants comply with this Agreement and there is no good faith dispute regarding outstanding jurisdictional discovery pending before the Court. Plaintiffs agree to refrain from serving or otherwise pursuing any non- jurisdictional discovery in this action until the resolution of the Specially Appearing Defendants’ challenge to this Court’s jurisdiction. Ifthis letter accurately reflects our agreement, please sign in the space provided below and return a copy to me for further handling. Sincerely, /s/ Barret V. Armbruster Barret V. Armbruster Associate Counsel for Specially Appearing Defendants AGREED AND ACCEPTED /s/ Matt E. Parks 10/28/20 Matt E. Parks Date Counsel for Plaintiff ce: Yvette Ostolaza Penny P. Reid Robert R. Burford ACTIVE 262552060 EXHIBIT 2 CAUSE NO. DC-20-16414 MARK RAY, M.D., ET AL. IN THE COURT OF Plaintiff, VS, DALLAS COUNTY, TEXAS OLIVER STREET DERMATOLOGY MANAGEMENT, LLC, ETAL. Defendant. IN THE 298TH JUDICIAL DISTRICT AFFIDAVIT OF DUE DILIGENCE On this day personally appeared Mauricio Segovia who, being by me duly sworn, deposed and said: "The following came to hand on Jul 7, 2021, 4:36 pm, SUBPOENA, For delivery to Geoff L. Wayne c/o Yvette Ostolaza or c/o Penny P. Reid at Sidley Austin LLP 1) Unsuccessful Attempt: Jul 8, 2021, 10:21 am CDT at SIDLEY AUSTIN LLP: 2021 MCKINNEY AVE SUITE 2000, DALLAS, TX 75201-1846 McKinney & Olive Building Security (Controlled Access Elevators) | spoke with the security officer, Penny Howard. Ms. Howard used the lobby phone to contact a person named "Beth" who was at Suite 2000. Beth placed Ms. Howard on hold and several minutes later informed Ms. Howard that no one was in the office to accept service and that neither Yvette Ostolaza nor Penny Reid were in the office but were working from home. | left my contact information with security to forward to Sidley Austin LLP 2) Unsuccessful Attempt:Jul 8, 2021, 11:38 am CDT at HOME: 6623 NORWAY RD, DALLAS, TX 75230-5243 The interior lights were on. No response from the Ring security video doorbell. Since there was no answer a delivery notice with a telephone number was posted on the front door, No vehicles were parked on the driveway. The following vehicle was parked in front of the residence:TX Tag MYW4147 registered to SARA MOYA 3) Unsuccessful Attempt:Jul 8, 2021, 12:25 pm CDT at SIDLEY AUSTIN LLP: 2021 MCKINNEY AVE SUITE 2000, DALLAS, TX 75201-1846 McKinney & Olive Building Security (Controlled Access) | spoke with the security officer, Nick, who telephoned Sidley Austin and was told that they were going to send someone downstairs even though the officer specifically asked for Margaret Allen. At 12:41 pm Jim Cook came downstairs to tell me that Margaret Allen was not in the office and that they will not accept process service. He then walked away. lam a person over eighteen (18) years of age and! am competent to make this affidavit. | am a resident of the State of Texas. | am familiar with the Texas Rules of Civil Procedure as they apply to service of Process. | am not a partyto this sult nor related or affiliated with any herein, and have no interest in the outcome of the suit. | have never been convicted of a felony or of a misdemeanor involving moral turpitude. | have personal knowledge of the facts stated herein and they are true and correct.” Ufhor EXHIBIT 2 LL LiL Mv io Sege Certificatic Certification Expl 12022 BEFORE ME, a Notary Public, on this day personally appeared Mauricio Segovia, known to me to be the person whose name is subscribed to the foregoing document and, being by me first duly sworn, declared that the statements therein contained are within his or her personal knowledge and are true and correct. UBSCRIBED AND SWORN TO ME ON Zi — an Notary Ps lic, State of Tex; M. SEGOVIA Epa8 28 My Notary ID # 129480220 Li aes EXHIBIT 3 From: Ostolaza, Yvette To: Matt Parks; ; Reid, Penny Ce: Subject: RE: Trinity et al v DG et al Date: ‘Thursday, July 8, 2021 11:57:47 AM Attachments: As you know, | am in trial and Penny is out of state. We have not spoken to Wayne to seek authority and I think you are too late. I don’t even know where he is this summer. Ye Sent with BlackBerry Work (www. blackberry.com) From: Matt Parks Date: Thursday, Jul 08, 2021, 11:47 AM T 'stolaza, Yvette < >, Allen, Margaret , Reid, Penny Ce: Robert Burford Subject: Trinity et al v DGI et al Counsel, Under Tex R Civ P 176.5(a), counsel for a party may be served with a subpoena for the party’s appearance. Will you agree to accept service of a subpoena for Geoff Wayne's appearance at tomorrow's hearing? Please let us know. Also, this should not be read as agreeing that Geoff Wayne’s deposition in Bobby Selkin’s case is not admissible in the Trinity matter. As you'd guess, we believe it is. Thank you, Matt Parks Partner Burford Perry, LLP 2 Houston Center | 909 Fannin St., Ste 2630 Houston, Texas 77 (office) 713-401-9790 | (fax) 713-993-7739 (cell) 713-899-7052 | Isp uobeSddcbedddclbbccdiccbcddlleblidcdlieecdibiceiiiocievcdbieccddiibbetrcilieeobbceceiiectick This e-mail is sent by a law firm and may contain information that is privileged or confidential. If you are not the intended recipient, please delete the e-mail and any attachments and notify us immediately. JES SSIS I AOSD ISEB ISIS IASB SISOS IOS DES ISOS A ISB SCSI IDOE RII SBOCI IIIS SERA IISA III Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Vicki Domingues on behalf of Robert Burford Bar No. 3371700 vdomingues@burfordperry.com Envelope ID: 55179986 Status as of 7/12/2021 11:04 AM CST Associated Case Party: MARK RAY Name BarNumber | Email TimestampSubmitted Status Robert R.Burford rburford@burfordperry.com 7/8/2021 8:29:57 PM SENT Matt E.Parks mparks@pburfordperry.com 7/8/2021 8:29:57 PM SENT Burford Perry Service service@burfordperry.com 7/8/2021 8:29:57 PM SENT Associated Case Party: OLIVER STREET DERMATOLOGY HOLDINGS LLC Name BarNumber Email TimestampSubmitted | Status Margaret Allen margaret.allen@sidley.com | 7/8/2021 8:29:57 PM SENT Associated Case Party: DERM GROWTH PARTNERS |, LLC Name BarNumber | Email TimestampSubmitted Status Penny P. Reid preid@sidley.com 7/8/2021 8:29:57 PM SENT Barret Armbruster barmbruster@sidley.com 7/8/2021 8:29:57 PM SENT Patrick Foley patrick.foley@sidley.com 7/8/2021 8:29:57 PM SENT Mitchell BrantAlleluia-Feinberg malleluiafeinberg@sidley.com 7/8/2021 8:29:57 PM SENT Yvette Ostolaza yvette.ostolaza@sidley.com 7/8/2021 8:29:57 PM SENT Sophie V.Franks sfranks@sidley.com 7/8/2021 8:29:57 PM SENT Case Contacts Name TX Efiling Notice Nancy Cade Crystal Clark Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Vicki Domingues on behalf of Robert Burford Bar No. 3371700 vdomingues@burfordperry.com Envelope ID: 55179986 Status as of 7/12/2021 11:04 AM CST Case Contacts Diane Padilla dpadilla@sidley.com 7/8/2021 8:29:57 PM SENT