Preview
Filed: 9/22/2022 9:45 AM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 68506400
By: Rolande Kain
9/22/2022 9:50 AM
CAUSE NO. 20-CV-0725
BOYD BRYAN § IN THE DISTRICT COURT OF
Plaintiff/Counter-Defendant §
§
v. §
KEVIN DAUGHERTY §
Defendant/Third-Party Defendant, §
§
v. § GALVESTON COUNTY, TEXAS
RONALD PETERSEN and JULIE PETERSEN, §
Intervenors, §
§
v. §
CODY WADE PALASOTA and §
THOMAS HENRY SMITH III §
Third-Party Defendants § 122ND JUDICIAL DISTRICT
INTERVENORS’ MOTION TO COMPEL PLAINTIFF AND THIRD-PARTY DEFENDANTS’
RESPONSES TO DISCOVERY AND PRIVILEGE LOG
TO THE HONORABLE JUDGE OF SAID COURT:
COME NOW Intervenors Ronald and Julie Petersen (“Intervenors”) ask the Court to compel
Plaintiff Boyd Bryan (“Bryan”) and Third-Party Defendants Cody Wade Palasota (“Palasota”) and
Thomas Henry Smith III (“Smith”) (collectively “Respondents”), to produce documents and non-evasive
responses to Intervenors’ discovery requests, and where the attorney-client privilege or work product
privilege was asserted a privilege log, and would respectfully show as follows:
I. INTRODUCTION
1. Plaintiff and Third-Party Defendants have spent over four months delaying their responses to
Intervenors’ for one reason or another.
2. First, they simply ignored the requests, waiving their objections based on a purported
misunderstanding of the Rules of Civil Procedure.
3. Second, the late-served responses were threadbare, hiding behind improper objections based on
Page 1 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725
various privileges. Intervenors know these objections are improper, because no fewer than 3 times
Intervenors’ requests for a privilege log of the documents Respondents refuse to produce is now,
in the very best case, over 2 months late.
4. Third, Respondents stated they would not produce a single document until their Motion for
Protective Order was ruled on.
5. Fourth, Respondents stated they would not produce a single document until their hybrid motion to
dismiss, strike, and sanction Intervenors was ruled upon. All Respondents’ motions have been
denied.
6. Finally, the undersigned contacted counsel for all respondents, Mr. Weiner, who indicated that he
is retiring and would provide documents by September 9, 2022. Indicating yet another stalling
tactic, neither Mr. Weiner nor his firm, the Law Offices of Roger G. Jain P.C., have turned lead
counsel over to a new attorney, nor have any documents, responses, or privilege logs been
provided.
II. PROCEDURAL HISTORY
7. Plaintiff, Boyd Bryan sued Defendant, Kevin Daugherty for breach of contract and promissory
estoppel.
8. On December 8, 2020, Intervenors filed their Original Petition in Intervention seeking a
declaration that their interest in the real property reflected in a perfected abstracted judgment,
irrespective of any interest claimed by the Plaintiff.
9. On March 29, 2022, Intervenors filed their First Amended Petition in Intervention, Third-Party
Complaint, Affirmative Defenses, Special Exceptions, and First Requests for Discovery.
Intervenors and asserted additional fraudulent transfer of property in violation of the TUFTA claim
and civil conspiracy claims.
Page 2 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725
10. Discovery in this suit is governed by a Level 2 discovery-control plan.
11. This case is currently not set for trial.
III. BACKGROUND
12. On March 29, 2022, Intervenors served discovery requests on Respondents.
13. Plaintiff’s responses were due April 29, 2022. Plaintiff did not serve timely responses. As such,
all of the Intervenors’ Requests for Admission were deemed “admitted” by Plaintiff by operation
of law.
14. Third-Party Defendants’ responses were due on May 17, 2022. Intervenors were informed that
Palasota is on active military duty, and Smith did not respond by the due date.
15. On May 16, 2022, Plaintiff filed a Motion for Protective Order and a Motion to Withdraw Deemed
Admissions and attached to the latter motion his discovery responses. A true and correct copy of
Plaintiff’s discovery responses is attached as Exhibit 1.
16. On June 2, 2022, Intervenors sent Plaintiff a letter requesting Plaintiff to withdraw his improper
objections asserting privilege and to supplement his responses with a privilege log by June 17,
2022. A true and correct copy of June 2, 2022, letter is attached as Exhibit 2.
17. On June 7, 2022, Third-Party Defendants Smith filed his untimely responses to the Intervenors’
discovery, including boilerplate objections, improper objections to privilege, and general
objections that the discovery was premature. A true and correct copy of the Third-Party Defendant
Smith’s discovery responses is attached as Exhibit 3.
18. On June 10, 2022, Intervenors’ counsel wrote an email to Plaintiff’s counsel once again expressing
that he was not opposed to Plaintiff’s Motion Withdraw Deemed Admissions and suggested a Rule
11 Agreement that would undeem Plaintiff’s admissions. Plaintiff responded with a Rule 11
agreement for Intervenor to sign but included extra language about Plaintiff's waived objections
Page 3 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725
to Requests for Admission, to which Intervenors did not agree. A true and correct copy of the draft
Rule 11 agreement is attached hereto as Exhibit 4.
19. On June 15, 2022, Intervenor’s counsel wrote an email to Plaintiff’s counsel expressing, once
more, that he was not opposed to Plaintiff’s Motion to Withdraw Deemed Admissions.
Additionally, Intervenors sent Plaintiff a second letter requesting that Bryan withdraw his improper
objections, supplement with responsive answers and a privilege log, and review his admissions
which appear to violate Rule 198. A true and correct copy of June 15, 2022, letter is attached as
Exhibit 5.
20. Neither Plaintiff nor Third-Party Defendants complied with multiple requests to produce a
privilege log.
21. On June 22, 2022, Intervenors requested a meet and confer teleconference in an attempt to resolve
the aforementioned discovery disputes. Plaintiff agreed, and the undersigned and counsel for
Intervenors conferred on June 30, 2022. Intervenor once again requested that Plaintiff respond to
discovery. Counsel for movants stated that Movants would not respond to any of the Intervenors’
discovery requests until the Motion for Protective Order and Motion to Dismiss was ruled upon.
22. A hearing on Respondents’ Motion for Protective order was set for April 18, 2022, then reset for
May 18, 2022, and reset again for July 11, 2022, but the Court did not hear Respondent’s Motion.
In their response to the Motion for Protective Order, Intervenors moved the Court to determine the
sufficiency of Plaintiff’s limited responses to Intervenors’ Requests for Admission and improper
objections based on privilege.
23. The Court also took Respondents’ Motion to Dismiss Pursuant to Rule 91a on submission on
August 4, 2022, and denied their motion on August 9, 2022. Intervenors’ counsel reached out to
Respondents’ counsel on August 25, 2022, in another attempt to seek responsive documents and
Page 4 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725
answers to Intervenors’ discovery. Respondents’ counsel requested “a bit more time”, to which
Intervenors granted an additional fifteen (15) days.
24. As of the date of this filing, neither Plaintiff nor Smith has withdrawn any of their improper
objections.
25. As of the date of this filing, Palasota has filed disclosures, but no other discovery responses.
26. Thus, after months of attempts to resolve this discovery dispute without the aid of the Court,
Intervenors must now file this Motion to Compel Respondents to provide and produce non-evasive
and complete responses to discovery and a privilege log of those documents they contend are
protected by the attorney-client privilege.
IV. ARGUMENT & AUTHORITIES
27. The purpose of discovery is to seek the truth so that disputes may be decided by what facts are
revealed, not by what facts are concealed. In re K&L Auto Crushers, LLC, 627 S.W.3d 239, 248
(Tex. 2021); Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 555 (Tex. 1990). A party may seek
discovery of any matter that is relevant to the subject matter and proportional to the needs of the
case. See TEX. R. CIV. P. 192.3(a), 192.4(b); In re K&L Auto Crushers, 627 S.W.3d at 247–48; In
re Turner, 591 S.W.3d 121, 126 (Tex. 2019); In re State Farm Lloyds, 520 S.W.3d 595, 607 (Tex.
2017). Discovery can include evidence that may be inadmissible as long as it “appears reasonably
calculated to lead to the discovery of admissible evidence.” TEX. R. CIV. P. 192.3(A).
V. RESPONDENTS HAVE WAIVED THEIR OBJECTIONS
28. As a preliminary matter, each of Bryan, Palasota, and Smith have waived their objections for two
reasons: untimely responses and improper objections.
29. Not a single response to a single one of Intervenors’ requests for admission, production, or
interrogatories was served timely—by any of the Respondents. Respondents, each of them, waived
Page 5 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725
all of the objections they hide behind. TEX. R. CIV. P. 193.2(E); see Remington Arms Co. v.
Canales, 837 S.W.2d 624, 625 (Tex. 1992).
30. On March 29, 2022, Intervenors served Plaintiff and Third-Party Defendants with the discovery in
accordance with Texas Rules of Civil Procedure 194, 196, 197, and 198. The responses from
Plaintiff were due on April 29, 2022, and the responses from Third-Party Defendants were due on
May 17, 2022. Intervenors attach proof of service to this motion as Exhibit 6 and incorporate it by
reference.
31. With the exception of Palasota, counsel for Respondents never even conferred with Intervenors
for an extension. Nevertheless, even in the case of Palasota, no Rule 11 Agreement was reached
as to when Palasota’s responses were anticipated; and the Court did not grant an extension. See
TEX. R. CIV. P. 191.1. Although Palasota was able to file his disclosures on June 7, 2022,
Intervenors have still not received a single response—even an objection—to any request.
Respondents should not be relieved of their waived objections. Not one can show good cause for
failing to timely serve their responses. TEX. R. CIV. P. 193.2(e).
32. Moreover, Respondents waived their objections because any valid objections are obscured by
numerous unfounded objections. TEX. R. CIV. P. 193.2(e). Specifically, Bryan and Smith raised a
multitude of objections to nearly every Request and Interrogatory propounded on them. As
discussed in further detail below, these objections are completely unfounded. They lack specificity,
evidentiary support, and are repetitive boilerplate untethered to any one request.
33. For example, Plaintiff objected to almost every question for being burdensome but did not provide
any evidence as to how the production of the requested documents is going to be burdensome and
why such burden outweighs Intervenors’ necessity of discovery. Additionally, Smith did not
answer a single request and replied to each request with the same objections of attorney and work
Page 6 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725
product privilege and prematurity. Therefore, Bryan and Smith waived their objections, and the
Court should strike Bryan and Smith’s objections to Intervenors’ Discovery Requests.
VI. Plaintiff’s Discovery Responses
34. Plaintiff’s general objections to the Request for Production, Requests for Admission, and
Interrogatories are improper as they violate Texas Rules of Civil Procedure 193.2(c) and 193.2(a),
which require objections to be made on good faith factual and legal basis and with specificity.
TEX. R. CIV. P. 193.2(c) and 193.2(a). General objections are by nature non-specific with respect
to what information is being withheld and why. Hence, general objections are improper and should
be withdrawn.
35. A court may compel a party to respond adequately to Requests for Productions, Requests for
Admission, and Interrogatories. TEX. R. CIV. P. 215.1(B)(3)(D). Plaintiff did not respond
adequately to Requests for Productions, Request for Admission, and Interrogatories, as required
by Texas Rule of Civil Procedure 193.1, 196, 197, and 198. Therefore, the Court should compel
Plaintiff to comply with the rule.
A. Plaintiff’s Objections Must Be Overruled and Plaintiff Compelled to Provide
Complete and Non-Evasive Responses to Intervenors’ RFP Nos. 1-19 and 23-25.
36. In Intervenors’ Requests for Productions 1-19, 23-25 Plaintiff was directed to produce the
following:
• documents including communications between Plaintiff and Defendant relating to:
o Property at issue in this case from 2008 to the present,
o 2018 Litigation,
o any settlement or release of claim from January 1, 2018, to December 31, 2020,
o deeds or other conveyance instruments.
Page 7 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725
• documents including communications between Plaintiff and Third-Party Defendants
Smith and Palasota relating to:
o Property or transfer of Property from January 1, 2018, to December 31, 2020,
o any settlement, release of claim or draft of any settlement or release of claim from
January 1, 2018, to December 31, 2020,
o the Sheriff’s Sale (or judgment lien foreclosure sale by the Intervenors on June 2,
2020) of the Property, from January 1, 2020, to the date of production.
• documents including communications between Plaintiff and any Person (including but
not limited to attorneys, tax professional, and investors) relating to the Sheriff’s Sale
(or judgment lien foreclosure sale by the Intervenors on June 2, 2020 of the Property,
from January 1, 2020, to the date of production.
37. The following, reproduced from Plaintiff’s response to Request for Production No. 14 is
demonstrative of nearly every response Plaintiff provided:
Page 8 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725
38. Plaintiff’s objections are without merit as the requested discovery directly relates to Intervenors’
claims for fraudulent transfer of property in violation of Uniform Fraudulent Transfer Act TEX.
BUS. & COM. CODE § 24.001 and claims for civil conspiracy.
39. Further, Intervenors’ requests are limited to a single topic per request and to a specific time span.
Both limitations serve to limit Intervenors’ discovery of information reasonably believed to
produce admissible evidence and relevant to Intervenors’ claims
40. Intervenors’ discovery request is proportional to the needs of the case. See TEX. R. CIV. P. 192.4(B);
In re K&L Auto Crushers, 627 S.W.3d at 254–55; In re USAA Gen. Indem. Co., 624 S.W.3d 782,
792–93 (Tex. 2021); In re State Farm Lloyds, 520 S.W.3d at 607. Specifically, the requests are
proportional as the likely benefits of the requested discovery outweigh any enhanced effort or
expense in producing the information. The requested documents contain information and
arrangements made by Plaintiff and Defendant with regards to the ownership of the property, the
cost of the property, the contribution of each party towards the acquisition of the property and
maintenance of it, the contribution of the tenants to the maintenance of the property, and
documentation of conspiracy to prevent execution of Intervenors’ judgment lien on the property,
all which are at issue in this case. Plaintiff’s responses are clearly meant to undermine
Intervenors’ efforts, as he provides no evidence or argument of any purported undue hardship or
unnecessary expense.
41. Plaintiff objects on the grounds of attorney-client privilege and attorney work privilege but did not
produce a privilege log requested by the Intervenors. Plaintiff should be required to produce a
privilege log.
42. Importantly, Plaintiff suggests through his objection that he has somehow already produced
documents that are also privileged. Of course, this is, again, mere boilerplate and time-wasting.
Page 9 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725
No discovery was exchanged in this case prior to the Intervenors’ requests. The case Plaintiff cites
to in support of his evasive responses has no merit in the context of discovery in this case.
43. To the extent Plaintiff objects on the basis that Intervenors’ requests seek confidential information
that invades his privacy, Plaintiff does not specify how exactly the Intervenors’ requests would
lead to the production of evidence that will invade Plaintiff’s rights. Texas Supreme Court in In re
Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999) required a party resisting discovery to
produce some evidence in support of its protective order. In this case, Plaintiff moved for a
protective order without presenting the Court with any competent evidence in support!
44. To the extent Plaintiff objects on the grounds that the documents and communications are not
within his possession, Plaintiff tries to make a case that he does not have a copy of the documents
and communications that he sent to the Defendant and received from the Defendant. Plaintiff does
not present any evidence as to why such documents would not be in his possession given that in
most ordinary circumstances, he would have copies of emails that he sent and phone calls that he
made.
45. In addition to the inadequate objections outlined above, Plaintiff objects to Requests for Production
5 and 25 on the grounds that Intervenors are seeking a publicly accessible information.
Communications and conveyance instruments between Plaintiff and Defendant are not public
information and cannot be obtained by Intervenors in any other way but for discovery in the present
case.
46. Finally, in Plaintiff’s response to Requests for Production 26 and 27, he adds some new and
additional flavors of meaningless objections - marshalling all available proof for trial and
harassment. Intervenors request was to identify dates, times and email addresses used in email and
oral communications between Plaintiff and Defendant. The requests do not ask Plaintiff to marshal
Page 10 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725
all available evidence but seek the facts underlying the plaintiffs’ claims, which is the very purpose
of discovery. In re SWEPI L.P., 103 S.W.3d 578, 590 (Tex. App. – San Antonio 2003, orig.
proceeding). If discovery seeks information and documents that are relevant or reasonably
calculated to lead to the discovery of admissible evidence, it generally cannot be harassing. ISK
Biotech Corp. v. Lindsay, 933 S.W.2d 565, 569 (Tex. App. – Houston [1st Dist.] 1996, no pet.).
Intervenors’ requests are tailored to obtain admissible evidence of fraudulent transfer and civil
conspiracy and therefore are not harassing.
47. A party resisting discovery cannot prevail simply by making conclusory allegations that the
requested discovery is unduly burdensome, unnecessarily harassing, or an invasion of personal,
constitutional, or property rights. In Matter of Issuance of Subpoenas Depositions of Bennett, 502
S.W.3d 373, 380 (Tex. App. – Houston [14th Dist.] 2016, no pet.). Plaintiff’s objections in each
and every case are demonstrably improper and, therefore, should be overruled, and Plaintiff should
be required to amend his responses and produce any documents withheld.
B. Plaintiff’s Objections Must Be Overruled and Plaintiff Compelled to Provide
Complete and Non-Evasive Responses to Intervenors’ RFA Nos. 7-10, 18, 20, 22, 24-
30, 32, 35, 43, 44.
48. Plaintiff uses the same tired boilerplate objections to Intervenors’ Requests for Admission as he
does his objections to Intervenors’ Requests for Production—albeit styled to suit an admission
instead of a production of documents. Equally inappropriate, they can be summed up as follows:
(1) attorney-client privilege; (2) evidentiary objections; (3) harassment and overbreadth; and (4)
vagueness and ambiguity. The following response to Intervenors’ Request for Admission No. 35-
37 is demonstrative of the eighteen (18) responses that incorporate identical objections:
Page 11 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725
49. Importantly, counsel for Plaintiff is a seasoned attorney and understands both the Rules of Civil
Procedure and how to conduct and respond to discovery. In short, opposing counsel is not a first-
year associate. Nevertheless, Plaintiff’s objections are non-viable because the subject matter of
discovery is not limited to what would be admissible in trial, but to requests that are reasonably
calculated to lead to the discovery of admissible evidence. TEX. R. CIV. P. 192.3(a); ISK Biotech
Corp. v. Lindsay, 933 S.W.2d 565, 569 (Tex. App. – Houston [1st Dist.] 1996, no pet.).
50. Intervenors’ strict compliance with the Rules results in requests seeking information that within
the personal knowledge of the Plaintiff. Intervenors’ requests are tailored to obtain admissible
Page 12 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725
evidence of fraudulent transfer and civil conspiracy. Plaintiff’s objections that these requests are
somehow harassing or would be precluded at trial by the hearsay rule are improper and should be
overruled.
51. Plaintiff’s antics are on full display in his objections to Request for Admission Nos. 20 and 33. In
response to both Requests, Plaintiff objects because the Requests are “vague and ambiguous.” The
two requests are reproduced below:
Page 13 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725
52. Intervenors’ Requests are clear and specific. Plaintiff does not indicate which word or words he
can’t understand. His obligation, of course, is to answer the question in part, if able. Importantly,
these Requests are core to Plaintiff’s own case against Defendant Daugherty—and responses to
which would be the first presentation of any fact supporting or controverting Plaintiff’s own
claims! Plaintiff’s objection, therefore, should be overruled, and Plaintiff ordered to respond.
VII. THIRD-PARTY DEFENDANT SMITH’S DISCOVERY RESPONSES
53. Third-Party Defendant Smith’s general objections to the Request for Production, Requests for
Admission, and Interrogatories are improper as they violate Texas Rules of Civil Procedure
193.2(c) and 193.2(a), which require objections to be made on good faith factual and legal basis
and with specificity. TEX. R. CIV. P. 193.2(C), 193.2(A). General objections are by nature non-
specific with respect to what information is being withheld and why. Hence, general objections
Page 14 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725
are improper and should be withdrawn.
C. Third-Party Defendant Smith’s Objections Must Be Overruled and Third-Party
Defendant Smith Must Be Compelled to Provide Complete and Non-Evasive
Responses to Intervenors’ RFP Nos. 1-23.
54. Third-Party Defendant Smith’s responses to the Requests for Productions 1-23 are inadequate as
every Request for Production has the exact same two objections, which is improper under Texas
Rules of Civil Procedure 193.2(c) and 193.2(a), which requires objections to be made on good
faith factual and legal basis, and with specificity. The following answer to the Request for
Production No. 7 is an illustrative example of how Third-Party Defendant Smith responded to
every Request for Production.
Page 15 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725
55. Third-Party Defendant Smith objects to every request on the grounds of attorney-client and
attorney work product privilege but did not produce a privilege log requested by the Intervenors
and required by the Texas Rules of Civil Procedure.
56. Moreover, the requested information falls under the crime-fraud exception to attorney-client
privilege as Intervenors plead Fraudulent Transfer of Property and Civil Conspiracy claims against
Plaintiff and his former attorneys, Third-Party Defendants Smith and Palasota. TEX. R. EVID. RULE
503(D)(1).
57. Finally, Third-Party Defendant Smith objects on the grounds that they are premature due to the
pending on Plaintiff’s and Third-Party Defendants’ Motion to Strike. Such objection is improper
and does not have any basis in the Texas Rules of Civil Procedure. However, the Court denied
Plaintiff’s Motion to Strike on August 9, 2022, and as such, the request even by Third-Party
Defendant Smith’s terms is not premature anymore. Third-Party Defendant Smith’s objections,
therefore, should be overruled, and Plaintiff should be required to amend his responses and
produce any documents withheld.
D. Third-Party Defendant Smith’s Objections Must Be Overruled and Third-Party
Defendant Smith Must Be Compelled to Provide Complete and Non-Evasive
Responses to Intervenors’ RFA Nos. 4-32.
58. Third-Party Defendant Smith’s “responses” to the Requests for Admissions No. 4-32 and
Interrogatory No. 4-5 are word-for-word responses to the Requests for Production. It would be
more fair to say that Third-Party Defendant Smith “responded” once to the Request for Production
No.4 and copied his response to all the other questions. As such, his “responses” are in violation
of Texas Rule of Civil Procedure 193.1, 196, 197, and 198. Third-Party Defendant Smith’s
objections, therefore, should be overruled, and Plaintiff should be required to amend his responses
and produce any documents withheld.
Page 16 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725
VIII. THIRD-PARTY DEFENDANT PALASOTA’S DISCOVERY RESPONSES
59. On May 17, 2022, Plaintiff informed Intervenors that Palasota is on active military duty and
therefore needed additional time to respond to discovery. Nevertheless, on June 7, 2022 Palasota
filed his Initial Disclosures, which puts to doubt his inability to respond to Intervenors’ Discovery
Requests.
60. Further, Palasota is represented by the same counsel as Bryan and Smith, who have been actively
frustrating Interventors’ attempts to obtain proper discovery responses for over four (4) months.
Palasota has delayed his responses for over one hundred twenty (120) days and after multiple
requests, his attorney has provided no indication of when, if ever, Intervenors will receive their
responses.
61. Intervenors, therefore, request an Order requiring Palasota respond to Intervenors’ Discovery; that
any objections be deemed waived; and that his responses to Intervenors’ Requests for Admission
be deemed admitted by operation of law.
IX. EXPENSES OF MOTION
62. Intervenors have incurred expenses in preparing and filing this motion to obtain relief. Under
Texas Rule of Civil Procedure 215.1(d), Intervenors are entitled to reasonable expenses incurred
in obtaining the order, including attorney’s fees, in the amount of $2,462.50 Attached is the
declaration of David R. Gantz in support of this fee request.
X. REQUEST TO SET HEARING
63. Intervenors request that a hearing on this matter and for Intervenors’ pending Motion to Determine
Sufficiency of Plaintiff Bryan’s Responses to Requests for Admission be set on the Court’s docket
at an early date.
Page 17 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725
XI. PRAYER
WHEREFORE, PREMISES CONSIDERED, Intervenors RONALD PETERSEN and JULIE
PETERSEN respectfully request the Court set this motion for hearing and, after the hearing, to enter an
Order compelling Plaintiff BOYD BRYAN, Third-Party Defendant CODY W. PALASOTA, and Third-
Party Defendant THOMAS H. SMITH III to respond completely to Intervenors’ discovery requests;
striking Plaintiff and Third-Party Defendants objections to Intervenors’ requests; deeming Third-Party
Defendant PALASOTA’s admissions admitted; and directing Plaintiff BRYAN, Third-Party Defendant
PALASOTA, Third-Party Defendant SMITH and their attorneys to pay Intervenors $2,462.50 for the
reasonable expenses and attorney fees incurred in filing this motion; and for such other and further relief
to which they show themselves justly entitled.
Respectfully Submitted,
By: /s/ David Gantz
David Gantz
State Bar No. 24087559
dgantz@beardandbarks.com
Justen S. Barks
State Bar No. 24087142
jbarks@beardandbarks.com
BEARD & BARKS, PLLC
5005 Riverway Dr., Ste 250
P.O. Box 22171
Houston, Texas 77056
Tel: (832) 317-6761
Email for Rule 21a Service:
edocs@beardandbarks.com
ATTORNEYS FOR INTERVENORS
Page 18 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725
CERTIFICATE OF CONFERENCE
I hereby certify that on Friday, August 26, 2022, I conferred with counsel for Respondents via
email and indicated that I extended Respondents a deadline of September 9, 2022 to prepare and serve
responsive documents, and that on the date of filing of the above Intervenors’ Motion to Compel, no
documents, responses, or privilege logs for any of the Respondents have been received by my office.
/s/ David R. Gantz
David R. Gantz
CERTIFICATE OF SERVICE
I hereby certify that on September 22, 2022, a true and correct copy of the foregoing MOTION
TO COMPEL was served in accordance with the Texas Rules of Civil Procedure, and pursuant to the
Court’s Order Granting Rule 106 Service dated September 30, 2021, on all parties as follows:
Kevin Daugherty
Red592003@yahoo.com
Defendant, Pro Se
Gary Weiner
Roger G. Jain & Associations, P.C.
9301 Southwest Freeway, Ste 250
Houston, Texas 77074
Gary@rogergjain.com
Attorney for Plaintiff
Attorney for Defendants Smith & Palasota
/s David R. Gantz
David R. Gantz
Page 19 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725
Filed: 5/16/2022 5:27 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 64555000
By: Shailja Dixit
5/17/2022 8:08 AM
CAUSE NO.: 20-CV-0725
BOYD BRYAN, § IN THE DISTRICT COURT OF
Plaintiff, §
§
v. §
§
KEVIN DAUGHERTY, § GALVESTON COUNTY, TEXAS
Defendant. §
§
RONALD PETERSEN and JULIE §
PETERSEN, §
Intervenors. § 122nd JUDICIAL DISTRICT
PLAINTIFF BRYAN’S MOTION TO WITHDRAW AND AMEND ADMISSIONS
TO THE HONORABLE JUDGE OF THIS COURT:
Plaintiff, BOYD BRYAN, moves the Court for an order permitting withdrawal of
admissions deemed made as a result of certain requests for admissions and for permission to file a
response to those requests. In support of this Motion, Plaintiff shows the following:
I.
PROCEDURAL BACKGROUND
1. On March 26, 2022, Intervenors RONALD PETERSEN and JULIE PETERSEN
filed their First Amended Petition in Intervention, seeking to join two new Third-Party
Defendants (Attorneys THOMAS H. SMITH III and CODY W. PALASOTA) and assert
additional causes of action against Plaintiff for violations of the Texas Uniform Fraudulent
Transfer Act (“TUFTA”), TEX. BUS. & COM. CODE § 24.001, et seq., and for civil conspiracy. As
part of their Petition, Intervenors attached 54 pages of discovery requests to Plaintiff and the
Third-Party Defendants, which included Requests for Admissions, Requests for Production, and
Interrogatories. (The relevant Requests for Admissions and Interrogatories to Plaintiff BRYAN,
including Plaintiff’s amended answers and responses to same, are attached to this Motion as
Exhibit A.)
Intervenors' Exhibit 1
PLAINTIFF BRYAN’S MOTION TO WITHDRAW AND AMEND ADMISSIONS – Page 1
2. Plaintiff and the Third-Party Defendants filed their Motion to Strike Intervenors’
First Amended Petition in Intervention and Third-Party Complaint in its entirety, asserting that
the causes of action alleged against the Third-Party Defendants were unsupportable as a matter
of Texas law and that Intervenors’ petition, as amended, was a frivolous pleading. Were the Court
to grant said Motion to Strike in its entirety, and strike Intervenors’ First Amended Petition in
Intervention, the embedded discovery requests would be stricken with it; were the Motion to be
granted only in part, such ruling would still reshape the issues properly before the Court, thereby
changing the scope of what would be subject to discovery in this case.
3. As of this filing, the Court has not yet set a date for hearing by submission or oral
hearing on the Motion to Strike Intervenors’ First Amended Petition in Intervention and Third-
Party Complaint.
II.
FACTUAL BACKGROUND
4. Plaintiff’s Responses to the Requests for Admissions were due to be served on
counsel for Intervenors on April 29, 2022. Plaintiff have not yet responded to Intervenors’
discovery requests for several reasons:
a. Plaintiff’s counsel, Gary Wiener, was scheduled for attorney vacation from April
19-30, 2022, and Intervenors’ counsel David Gantz had been made aware of this
by vacation letter dated February 21, 2022. Due to the voluminous nature of
Intervenors’ discovery requests, and the pendency of Plaintiff’s Motion to Strike
and the very strong likelihood of said Motion being granted in whole or in part,
Plaintiff’s immediate compliance with the discovery requests would have
unnecessarily (and further) increased his attorney’s fees and costs. The Court’s
ruling would, as a result, render all of Intervenors’ discovery requests moot, and
Plaintiff would have wasted money and resources in attempting to provide timely
responses.
PLAINTIFF BRYAN’S MOTION TO WITHDRAW AND AMEND ADMISSIONS – Page 2
b. On March 29, 2022 – three days after filing their amended Petition – Intervenors
filed a Motion to Disqualify Plaintiff’s law firm, Roger G. Jain & Associates, P.C.,
based in part on the frivolous causes of action raised in the amended Petition. The
Court heard oral argument on said Motion, and Plaintiff’s Response thereto and
associated Motion for Sanctions, on May 6, 2022, but deferred its decision until
the parties had supplemented their arguments in writing. As of the filing of this
Motion, the Court has not yet rendered its decision. Were Intervenors’ Motion to
Disqualify somehow to be granted, Plaintiff would be unable to adequately object
and respond to Intervenors’ discovery requests; thus, Plaintiff considered it
appropriate and prudent to attempt to wait to respond to discovery until the Court
had ruled on at least Intervenors’ Motion to Disqualify, and at best both said
Motion and Plaintiff’s Motion to Strike.
c. Plaintiff is entitled to, and contemporaneously with the filing of this Motion
requests, a protective Order to exclude all of Intervenors’ discovery requests that
seek to violate Plaintiff’s attorney-client and work-product discovery privileges,
pursuant to TEX. R. CIV. P. 192.3, TEX. R. CIV. P. 192.5(a) and TEX. R. EVID.
503(b); and to protect the trial strategy, mental impressions, and thought processes
of Plaintiff’s attorneys pursuant to TEX. R. CIV. P. 192.5(a). Plaintiff had hoped
that the filing of this Motion and their request for protective Order would not be
necessary, as Plaintiff is confident that Texas law solidly and completely supports
both his Response to the Motion to Disqualify and the Motion to Strike.
5. However, by letter of May 11, 2022, Mr. Gantz notified Mr. Wiener that he
intended to move the Court to compel Plaintiff’s discovery responses if not received by May 16.
It was only on May 11, therefore, that Plaintiff realized Intervenors would likely try to leverage
the letter of the TRCP discovery rules to his further disadvantage; and it was only then that the
necessity of this Motion became obvious.
6. Contemporaneously with the filing of this Motion, Plaintiff has served his
Objections and Responses to Intervenors’ discovery requests upon their counsel. In support of
PLAINTIFF BRYAN’S MOTION TO WITHDRAW AND AMEND ADMISSIONS – Page 3
Plaintiff’s good cause for the late-filed responses, Plaintiff incorporates and refers the Court to
the declaration of Plaintiff’s counsel, Gary A. Wiener, attached as Exhibit B.
III.
ARGUMENT & AUTHORITIES
7. A court may strike or allow a party to withdraw or amend its admissions if there
is good cause and no undue prejudice to the adverse party. TEX. R. CIV. P. 198.3; Marino v. King,
355 S.W.3d 629, 633 (Tex. 2011); Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005); Wal-
Mart Stores, Inc. v. Deggs, 968 S.W.2d 354, 356 (Tex. 1998). Good cause may be mere accident
or mistake. Marino, 355 S.W.3d at 633; Wheeler, 157 S.W.3d at 442; Wal-Mart Stores, 968
S.W.2d at 356.
8. Plaintiff’s untimely service of responses on Intervenors was not intentional.
Rather, Plaintiff had anticipated that his pending Motion to Strike would have been granted,
obviating any need for Plaintiff to draft and file responses to most of Intervenors’ requests at all.
Plaintiff was further under the mistaken belief that Intervenors would await decision on Movant’s
Motion to Strike (so that the issues to be litigated in this matter could be properly identified and
limited) rather than suddenly insist that Plaintiff respond to their requests before the Court had
ruled on what the proper scope of discovery in this matter would be.
9. Plaintiff further shows that Intervenors will not be unduly prejudiced by the
Court’s allowing the withdrawal of admissions and the substitution of the responses attached
hereto as Exhibit C. Specifically, Intervenors filed their original Petition in Intervention in this
cause on December 8, 2020, and have had opportunity to pursue discovery since then – seventeen
months ago. The only disposition pending in this cause is oral hearing on Plaintiff’s Motion for
Default Judgment against Defendant KEVIN DAUGHERTY, set for May 18, 2022. No trial date
has been set, and no docket control order entered, for Intervenors’ Petitions in Intervention and
PLAINTIFF BRYAN’S MOTION TO WITHDRAW AND AMEND ADMISSIONS – Page 4
Third-Party Complaint. Intervenors cannot therefore suggest any reliance on Plaintiff’s
admissions, and cannot assert that they have been prejudiced or surprised in any way by this
motion to withdraw them.
10. The presentation of the merits of this action will be served by permitting Plaintiff
to withdraw the deemed admissions and substitute the responses attached as Exhibit C. If the
Court strikes the admissions and allows Plaintiff to serve the attached responses, the case will be
resolved on the merits instead of by Intervenors’ procedural gamesmanship. TEX. R. CIV. P.
198.3(b); see Wheeler, 157 S.W.3d at 443 n.2; In re Kellogg-Brown & Root, Inc., 45 S.W.3d
772, 777 (Tex. App.—Tyler 2001, orig. proceeding).
11. Plaintiff will show that there is a good faith dispute as to the truth of the several
matters made the subject of the deemed admissions; that the matters are at the core of this
litigation; and that for justice to be done, these issues should be determined by the preponderance
of credible evidence – in the unlikely event they survive the dispositive Motions already pending
before the Court.
IV.
PRAYER
WHEREFORE, Plaintiff requests that the Court, after hearing this motion, order the
withdrawal of the admissions as set out above, order that the responses on Exhibit C, attached to
and served with this Motion, be considered as Plaintiff’s timely responses to the Requests for
Admissions, and afford Plaintiff such other and further relief as to which he may be justly entitled.
PLAINTIFF BRYAN’S MOTION TO WITHDRAW AND AMEND ADMISSIONS – Page 5
Respectfully submitted,
ROGER G. JAIN & ASSOCIATES, P.C.
/s/ Gary A. Wiener
Gary A. Wiener
State Bar No. 21266700
gary@rogergjain.com
9301 Southwest Freeway, Suite 250
Houston, Texas 77074
Tel.: (713) 981-0600
Fax: (888) 200-6848
info@rogergjain.com
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF CONFERENCE
I hereby certify that on May 12, 2022, I spoke by telephone with David Gantz, counsel for
Intervenors, regarding this Motion to Withdraw Deemed Admissions. Mr. Gantz indicated that
Intervenors are opposed to this Motion.
/s/ Gary A. Wiener
Gary A. Wiener
(Certificate of service on following page)
PLAINTIFF BRYAN’S MOTION TO WITHDRAW AND AMEND ADMISSIONS – Page 6
CERTIFICATE OF SERVICE
I hereby certify that on May 16, 2022, a true and correct copy of the foregoing was served
in accordance with the Texas Rules of Civil Procedure upon the following:
VIA E-MAIL
Kevin Daughtery
Email: red592003@yahoo.com
Facebook Messenger: https://www.facebook.com/kevin.daugherty.5
DEFENDANT PRO SE
VIA E-FILING AND EMAIL
David Gantz
BEARD & BARKS, PLLC
5005 Riverway Dr., Suite 250
P.O. Box 22171
Houston, Texas 77227
(832) 317-6761
dgantz@beardandbarks.com
ATTORNEY FOR INTERVENORS
/s/ Gary A. Wiener
Gary A. Wiener
PLAINTIFF BRYAN’S MOTION TO WITHDRAW AND AMEND ADMISSIONS – Page 7
A
CAUSE NO.: 20-CV-0725
BOYD BRYAN, § IN THE DISTRICT COURT OF
Plaintiff, §
§
v. §
§
KEVIN DAUGHERTY, § GALVESTON COUNTY, TEXAS
Defendant. §
§
RONALD PETERSEN and JULIE §
PETERSEN, §
Intervenors. § 122nd JUDICIAL DISTRICT
PLAINTIFF’S OBJECTIONS AND RESPONSES TO INTERVENOR JULIE
PETERSEN’S REQUESTS FOR PRODUCTION, INTERROGATORIES, AND
REQUESTS FOR ADMISSION TO PLAINTIFF
TO: Intervenor, Julie Petersen, by and through her attorney of record, David Gantz, BEARD &
BARKS, PLLC, 5005 Riverway Dr., Suite 250, P.O. Box 22171, Houston, Texas 77227,
dgantz@beardandbarks.com.
Plaintiff, BOYD BRYAN, hereby objects and responds to Intervenor JULIE PETERSEN’s
Requests for Production, Interrogatories and Requests for Admission as follows.
Respectfully submitted,
RO
Preview
Filed: 9/22/2022 9:45 AM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 68506400 By: Rolande Kain 9/22/2022 9:50 AM CAUSE NO. 20-CV-0725 BOYD BRYAN § IN THE DISTRICT COURT OF Plaintiff/Counter-Defendant § § v. § KEVIN DAUGHERTY § Defendant/Third-Party Defendant, § § v. § GALVESTON COUNTY, TEXAS RONALD PETERSEN and JULIE PETERSEN, § Intervenors, § § v. § CODY WADE PALASOTA and § THOMAS HENRY SMITH III § Third-Party Defendants § 122ND JUDICIAL DISTRICT INTERVENORS’ MOTION TO COMPEL PLAINTIFF AND THIRD-PARTY DEFENDANTS’ RESPONSES TO DISCOVERY AND PRIVILEGE LOG TO THE HONORABLE JUDGE OF SAID COURT: COME NOW Intervenors Ronald and Julie Petersen (“Intervenors”) ask the Court to compel Plaintiff Boyd Bryan (“Bryan”) and Third-Party Defendants Cody Wade Palasota (“Palasota”) and Thomas Henry Smith III (“Smith”) (collectively “Respondents”), to produce documents and non-evasive responses to Intervenors’ discovery requests, and where the attorney-client privilege or work product privilege was asserted a privilege log, and would respectfully show as follows: I. INTRODUCTION 1. Plaintiff and Third-Party Defendants have spent over four months delaying their responses to Intervenors’ for one reason or another. 2. First, they simply ignored the requests, waiving their objections based on a purported misunderstanding of the Rules of Civil Procedure. 3. Second, the late-served responses were threadbare, hiding behind improper objections based on Page 1 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725 various privileges. Intervenors know these objections are improper, because no fewer than 3 times Intervenors’ requests for a privilege log of the documents Respondents refuse to produce is now, in the very best case, over 2 months late. 4. Third, Respondents stated they would not produce a single document until their Motion for Protective Order was ruled on. 5. Fourth, Respondents stated they would not produce a single document until their hybrid motion to dismiss, strike, and sanction Intervenors was ruled upon. All Respondents’ motions have been denied. 6. Finally, the undersigned contacted counsel for all respondents, Mr. Weiner, who indicated that he is retiring and would provide documents by September 9, 2022. Indicating yet another stalling tactic, neither Mr. Weiner nor his firm, the Law Offices of Roger G. Jain P.C., have turned lead counsel over to a new attorney, nor have any documents, responses, or privilege logs been provided. II. PROCEDURAL HISTORY 7. Plaintiff, Boyd Bryan sued Defendant, Kevin Daugherty for breach of contract and promissory estoppel. 8. On December 8, 2020, Intervenors filed their Original Petition in Intervention seeking a declaration that their interest in the real property reflected in a perfected abstracted judgment, irrespective of any interest claimed by the Plaintiff. 9. On March 29, 2022, Intervenors filed their First Amended Petition in Intervention, Third-Party Complaint, Affirmative Defenses, Special Exceptions, and First Requests for Discovery. Intervenors and asserted additional fraudulent transfer of property in violation of the TUFTA claim and civil conspiracy claims. Page 2 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725 10. Discovery in this suit is governed by a Level 2 discovery-control plan. 11. This case is currently not set for trial. III. BACKGROUND 12. On March 29, 2022, Intervenors served discovery requests on Respondents. 13. Plaintiff’s responses were due April 29, 2022. Plaintiff did not serve timely responses. As such, all of the Intervenors’ Requests for Admission were deemed “admitted” by Plaintiff by operation of law. 14. Third-Party Defendants’ responses were due on May 17, 2022. Intervenors were informed that Palasota is on active military duty, and Smith did not respond by the due date. 15. On May 16, 2022, Plaintiff filed a Motion for Protective Order and a Motion to Withdraw Deemed Admissions and attached to the latter motion his discovery responses. A true and correct copy of Plaintiff’s discovery responses is attached as Exhibit 1. 16. On June 2, 2022, Intervenors sent Plaintiff a letter requesting Plaintiff to withdraw his improper objections asserting privilege and to supplement his responses with a privilege log by June 17, 2022. A true and correct copy of June 2, 2022, letter is attached as Exhibit 2. 17. On June 7, 2022, Third-Party Defendants Smith filed his untimely responses to the Intervenors’ discovery, including boilerplate objections, improper objections to privilege, and general objections that the discovery was premature. A true and correct copy of the Third-Party Defendant Smith’s discovery responses is attached as Exhibit 3. 18. On June 10, 2022, Intervenors’ counsel wrote an email to Plaintiff’s counsel once again expressing that he was not opposed to Plaintiff’s Motion Withdraw Deemed Admissions and suggested a Rule 11 Agreement that would undeem Plaintiff’s admissions. Plaintiff responded with a Rule 11 agreement for Intervenor to sign but included extra language about Plaintiff's waived objections Page 3 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725 to Requests for Admission, to which Intervenors did not agree. A true and correct copy of the draft Rule 11 agreement is attached hereto as Exhibit 4. 19. On June 15, 2022, Intervenor’s counsel wrote an email to Plaintiff’s counsel expressing, once more, that he was not opposed to Plaintiff’s Motion to Withdraw Deemed Admissions. Additionally, Intervenors sent Plaintiff a second letter requesting that Bryan withdraw his improper objections, supplement with responsive answers and a privilege log, and review his admissions which appear to violate Rule 198. A true and correct copy of June 15, 2022, letter is attached as Exhibit 5. 20. Neither Plaintiff nor Third-Party Defendants complied with multiple requests to produce a privilege log. 21. On June 22, 2022, Intervenors requested a meet and confer teleconference in an attempt to resolve the aforementioned discovery disputes. Plaintiff agreed, and the undersigned and counsel for Intervenors conferred on June 30, 2022. Intervenor once again requested that Plaintiff respond to discovery. Counsel for movants stated that Movants would not respond to any of the Intervenors’ discovery requests until the Motion for Protective Order and Motion to Dismiss was ruled upon. 22. A hearing on Respondents’ Motion for Protective order was set for April 18, 2022, then reset for May 18, 2022, and reset again for July 11, 2022, but the Court did not hear Respondent’s Motion. In their response to the Motion for Protective Order, Intervenors moved the Court to determine the sufficiency of Plaintiff’s limited responses to Intervenors’ Requests for Admission and improper objections based on privilege. 23. The Court also took Respondents’ Motion to Dismiss Pursuant to Rule 91a on submission on August 4, 2022, and denied their motion on August 9, 2022. Intervenors’ counsel reached out to Respondents’ counsel on August 25, 2022, in another attempt to seek responsive documents and Page 4 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725 answers to Intervenors’ discovery. Respondents’ counsel requested “a bit more time”, to which Intervenors granted an additional fifteen (15) days. 24. As of the date of this filing, neither Plaintiff nor Smith has withdrawn any of their improper objections. 25. As of the date of this filing, Palasota has filed disclosures, but no other discovery responses. 26. Thus, after months of attempts to resolve this discovery dispute without the aid of the Court, Intervenors must now file this Motion to Compel Respondents to provide and produce non-evasive and complete responses to discovery and a privilege log of those documents they contend are protected by the attorney-client privilege. IV. ARGUMENT & AUTHORITIES 27. The purpose of discovery is to seek the truth so that disputes may be decided by what facts are revealed, not by what facts are concealed. In re K&L Auto Crushers, LLC, 627 S.W.3d 239, 248 (Tex. 2021); Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 555 (Tex. 1990). A party may seek discovery of any matter that is relevant to the subject matter and proportional to the needs of the case. See TEX. R. CIV. P. 192.3(a), 192.4(b); In re K&L Auto Crushers, 627 S.W.3d at 247–48; In re Turner, 591 S.W.3d 121, 126 (Tex. 2019); In re State Farm Lloyds, 520 S.W.3d 595, 607 (Tex. 2017). Discovery can include evidence that may be inadmissible as long as it “appears reasonably calculated to lead to the discovery of admissible evidence.” TEX. R. CIV. P. 192.3(A). V. RESPONDENTS HAVE WAIVED THEIR OBJECTIONS 28. As a preliminary matter, each of Bryan, Palasota, and Smith have waived their objections for two reasons: untimely responses and improper objections. 29. Not a single response to a single one of Intervenors’ requests for admission, production, or interrogatories was served timely—by any of the Respondents. Respondents, each of them, waived Page 5 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725 all of the objections they hide behind. TEX. R. CIV. P. 193.2(E); see Remington Arms Co. v. Canales, 837 S.W.2d 624, 625 (Tex. 1992). 30. On March 29, 2022, Intervenors served Plaintiff and Third-Party Defendants with the discovery in accordance with Texas Rules of Civil Procedure 194, 196, 197, and 198. The responses from Plaintiff were due on April 29, 2022, and the responses from Third-Party Defendants were due on May 17, 2022. Intervenors attach proof of service to this motion as Exhibit 6 and incorporate it by reference. 31. With the exception of Palasota, counsel for Respondents never even conferred with Intervenors for an extension. Nevertheless, even in the case of Palasota, no Rule 11 Agreement was reached as to when Palasota’s responses were anticipated; and the Court did not grant an extension. See TEX. R. CIV. P. 191.1. Although Palasota was able to file his disclosures on June 7, 2022, Intervenors have still not received a single response—even an objection—to any request. Respondents should not be relieved of their waived objections. Not one can show good cause for failing to timely serve their responses. TEX. R. CIV. P. 193.2(e). 32. Moreover, Respondents waived their objections because any valid objections are obscured by numerous unfounded objections. TEX. R. CIV. P. 193.2(e). Specifically, Bryan and Smith raised a multitude of objections to nearly every Request and Interrogatory propounded on them. As discussed in further detail below, these objections are completely unfounded. They lack specificity, evidentiary support, and are repetitive boilerplate untethered to any one request. 33. For example, Plaintiff objected to almost every question for being burdensome but did not provide any evidence as to how the production of the requested documents is going to be burdensome and why such burden outweighs Intervenors’ necessity of discovery. Additionally, Smith did not answer a single request and replied to each request with the same objections of attorney and work Page 6 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725 product privilege and prematurity. Therefore, Bryan and Smith waived their objections, and the Court should strike Bryan and Smith’s objections to Intervenors’ Discovery Requests. VI. Plaintiff’s Discovery Responses 34. Plaintiff’s general objections to the Request for Production, Requests for Admission, and Interrogatories are improper as they violate Texas Rules of Civil Procedure 193.2(c) and 193.2(a), which require objections to be made on good faith factual and legal basis and with specificity. TEX. R. CIV. P. 193.2(c) and 193.2(a). General objections are by nature non-specific with respect to what information is being withheld and why. Hence, general objections are improper and should be withdrawn. 35. A court may compel a party to respond adequately to Requests for Productions, Requests for Admission, and Interrogatories. TEX. R. CIV. P. 215.1(B)(3)(D). Plaintiff did not respond adequately to Requests for Productions, Request for Admission, and Interrogatories, as required by Texas Rule of Civil Procedure 193.1, 196, 197, and 198. Therefore, the Court should compel Plaintiff to comply with the rule. A. Plaintiff’s Objections Must Be Overruled and Plaintiff Compelled to Provide Complete and Non-Evasive Responses to Intervenors’ RFP Nos. 1-19 and 23-25. 36. In Intervenors’ Requests for Productions 1-19, 23-25 Plaintiff was directed to produce the following: • documents including communications between Plaintiff and Defendant relating to: o Property at issue in this case from 2008 to the present, o 2018 Litigation, o any settlement or release of claim from January 1, 2018, to December 31, 2020, o deeds or other conveyance instruments. Page 7 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725 • documents including communications between Plaintiff and Third-Party Defendants Smith and Palasota relating to: o Property or transfer of Property from January 1, 2018, to December 31, 2020, o any settlement, release of claim or draft of any settlement or release of claim from January 1, 2018, to December 31, 2020, o the Sheriff’s Sale (or judgment lien foreclosure sale by the Intervenors on June 2, 2020) of the Property, from January 1, 2020, to the date of production. • documents including communications between Plaintiff and any Person (including but not limited to attorneys, tax professional, and investors) relating to the Sheriff’s Sale (or judgment lien foreclosure sale by the Intervenors on June 2, 2020 of the Property, from January 1, 2020, to the date of production. 37. The following, reproduced from Plaintiff’s response to Request for Production No. 14 is demonstrative of nearly every response Plaintiff provided: Page 8 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725 38. Plaintiff’s objections are without merit as the requested discovery directly relates to Intervenors’ claims for fraudulent transfer of property in violation of Uniform Fraudulent Transfer Act TEX. BUS. & COM. CODE § 24.001 and claims for civil conspiracy. 39. Further, Intervenors’ requests are limited to a single topic per request and to a specific time span. Both limitations serve to limit Intervenors’ discovery of information reasonably believed to produce admissible evidence and relevant to Intervenors’ claims 40. Intervenors’ discovery request is proportional to the needs of the case. See TEX. R. CIV. P. 192.4(B); In re K&L Auto Crushers, 627 S.W.3d at 254–55; In re USAA Gen. Indem. Co., 624 S.W.3d 782, 792–93 (Tex. 2021); In re State Farm Lloyds, 520 S.W.3d at 607. Specifically, the requests are proportional as the likely benefits of the requested discovery outweigh any enhanced effort or expense in producing the information. The requested documents contain information and arrangements made by Plaintiff and Defendant with regards to the ownership of the property, the cost of the property, the contribution of each party towards the acquisition of the property and maintenance of it, the contribution of the tenants to the maintenance of the property, and documentation of conspiracy to prevent execution of Intervenors’ judgment lien on the property, all which are at issue in this case. Plaintiff’s responses are clearly meant to undermine Intervenors’ efforts, as he provides no evidence or argument of any purported undue hardship or unnecessary expense. 41. Plaintiff objects on the grounds of attorney-client privilege and attorney work privilege but did not produce a privilege log requested by the Intervenors. Plaintiff should be required to produce a privilege log. 42. Importantly, Plaintiff suggests through his objection that he has somehow already produced documents that are also privileged. Of course, this is, again, mere boilerplate and time-wasting. Page 9 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725 No discovery was exchanged in this case prior to the Intervenors’ requests. The case Plaintiff cites to in support of his evasive responses has no merit in the context of discovery in this case. 43. To the extent Plaintiff objects on the basis that Intervenors’ requests seek confidential information that invades his privacy, Plaintiff does not specify how exactly the Intervenors’ requests would lead to the production of evidence that will invade Plaintiff’s rights. Texas Supreme Court in In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999) required a party resisting discovery to produce some evidence in support of its protective order. In this case, Plaintiff moved for a protective order without presenting the Court with any competent evidence in support! 44. To the extent Plaintiff objects on the grounds that the documents and communications are not within his possession, Plaintiff tries to make a case that he does not have a copy of the documents and communications that he sent to the Defendant and received from the Defendant. Plaintiff does not present any evidence as to why such documents would not be in his possession given that in most ordinary circumstances, he would have copies of emails that he sent and phone calls that he made. 45. In addition to the inadequate objections outlined above, Plaintiff objects to Requests for Production 5 and 25 on the grounds that Intervenors are seeking a publicly accessible information. Communications and conveyance instruments between Plaintiff and Defendant are not public information and cannot be obtained by Intervenors in any other way but for discovery in the present case. 46. Finally, in Plaintiff’s response to Requests for Production 26 and 27, he adds some new and additional flavors of meaningless objections - marshalling all available proof for trial and harassment. Intervenors request was to identify dates, times and email addresses used in email and oral communications between Plaintiff and Defendant. The requests do not ask Plaintiff to marshal Page 10 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725 all available evidence but seek the facts underlying the plaintiffs’ claims, which is the very purpose of discovery. In re SWEPI L.P., 103 S.W.3d 578, 590 (Tex. App. – San Antonio 2003, orig. proceeding). If discovery seeks information and documents that are relevant or reasonably calculated to lead to the discovery of admissible evidence, it generally cannot be harassing. ISK Biotech Corp. v. Lindsay, 933 S.W.2d 565, 569 (Tex. App. – Houston [1st Dist.] 1996, no pet.). Intervenors’ requests are tailored to obtain admissible evidence of fraudulent transfer and civil conspiracy and therefore are not harassing. 47. A party resisting discovery cannot prevail simply by making conclusory allegations that the requested discovery is unduly burdensome, unnecessarily harassing, or an invasion of personal, constitutional, or property rights. In Matter of Issuance of Subpoenas Depositions of Bennett, 502 S.W.3d 373, 380 (Tex. App. – Houston [14th Dist.] 2016, no pet.). Plaintiff’s objections in each and every case are demonstrably improper and, therefore, should be overruled, and Plaintiff should be required to amend his responses and produce any documents withheld. B. Plaintiff’s Objections Must Be Overruled and Plaintiff Compelled to Provide Complete and Non-Evasive Responses to Intervenors’ RFA Nos. 7-10, 18, 20, 22, 24- 30, 32, 35, 43, 44. 48. Plaintiff uses the same tired boilerplate objections to Intervenors’ Requests for Admission as he does his objections to Intervenors’ Requests for Production—albeit styled to suit an admission instead of a production of documents. Equally inappropriate, they can be summed up as follows: (1) attorney-client privilege; (2) evidentiary objections; (3) harassment and overbreadth; and (4) vagueness and ambiguity. The following response to Intervenors’ Request for Admission No. 35- 37 is demonstrative of the eighteen (18) responses that incorporate identical objections: Page 11 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725 49. Importantly, counsel for Plaintiff is a seasoned attorney and understands both the Rules of Civil Procedure and how to conduct and respond to discovery. In short, opposing counsel is not a first- year associate. Nevertheless, Plaintiff’s objections are non-viable because the subject matter of discovery is not limited to what would be admissible in trial, but to requests that are reasonably calculated to lead to the discovery of admissible evidence. TEX. R. CIV. P. 192.3(a); ISK Biotech Corp. v. Lindsay, 933 S.W.2d 565, 569 (Tex. App. – Houston [1st Dist.] 1996, no pet.). 50. Intervenors’ strict compliance with the Rules results in requests seeking information that within the personal knowledge of the Plaintiff. Intervenors’ requests are tailored to obtain admissible Page 12 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725 evidence of fraudulent transfer and civil conspiracy. Plaintiff’s objections that these requests are somehow harassing or would be precluded at trial by the hearsay rule are improper and should be overruled. 51. Plaintiff’s antics are on full display in his objections to Request for Admission Nos. 20 and 33. In response to both Requests, Plaintiff objects because the Requests are “vague and ambiguous.” The two requests are reproduced below: Page 13 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725 52. Intervenors’ Requests are clear and specific. Plaintiff does not indicate which word or words he can’t understand. His obligation, of course, is to answer the question in part, if able. Importantly, these Requests are core to Plaintiff’s own case against Defendant Daugherty—and responses to which would be the first presentation of any fact supporting or controverting Plaintiff’s own claims! Plaintiff’s objection, therefore, should be overruled, and Plaintiff ordered to respond. VII. THIRD-PARTY DEFENDANT SMITH’S DISCOVERY RESPONSES 53. Third-Party Defendant Smith’s general objections to the Request for Production, Requests for Admission, and Interrogatories are improper as they violate Texas Rules of Civil Procedure 193.2(c) and 193.2(a), which require objections to be made on good faith factual and legal basis and with specificity. TEX. R. CIV. P. 193.2(C), 193.2(A). General objections are by nature non- specific with respect to what information is being withheld and why. Hence, general objections Page 14 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725 are improper and should be withdrawn. C. Third-Party Defendant Smith’s Objections Must Be Overruled and Third-Party Defendant Smith Must Be Compelled to Provide Complete and Non-Evasive Responses to Intervenors’ RFP Nos. 1-23. 54. Third-Party Defendant Smith’s responses to the Requests for Productions 1-23 are inadequate as every Request for Production has the exact same two objections, which is improper under Texas Rules of Civil Procedure 193.2(c) and 193.2(a), which requires objections to be made on good faith factual and legal basis, and with specificity. The following answer to the Request for Production No. 7 is an illustrative example of how Third-Party Defendant Smith responded to every Request for Production. Page 15 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725 55. Third-Party Defendant Smith objects to every request on the grounds of attorney-client and attorney work product privilege but did not produce a privilege log requested by the Intervenors and required by the Texas Rules of Civil Procedure. 56. Moreover, the requested information falls under the crime-fraud exception to attorney-client privilege as Intervenors plead Fraudulent Transfer of Property and Civil Conspiracy claims against Plaintiff and his former attorneys, Third-Party Defendants Smith and Palasota. TEX. R. EVID. RULE 503(D)(1). 57. Finally, Third-Party Defendant Smith objects on the grounds that they are premature due to the pending on Plaintiff’s and Third-Party Defendants’ Motion to Strike. Such objection is improper and does not have any basis in the Texas Rules of Civil Procedure. However, the Court denied Plaintiff’s Motion to Strike on August 9, 2022, and as such, the request even by Third-Party Defendant Smith’s terms is not premature anymore. Third-Party Defendant Smith’s objections, therefore, should be overruled, and Plaintiff should be required to amend his responses and produce any documents withheld. D. Third-Party Defendant Smith’s Objections Must Be Overruled and Third-Party Defendant Smith Must Be Compelled to Provide Complete and Non-Evasive Responses to Intervenors’ RFA Nos. 4-32. 58. Third-Party Defendant Smith’s “responses” to the Requests for Admissions No. 4-32 and Interrogatory No. 4-5 are word-for-word responses to the Requests for Production. It would be more fair to say that Third-Party Defendant Smith “responded” once to the Request for Production No.4 and copied his response to all the other questions. As such, his “responses” are in violation of Texas Rule of Civil Procedure 193.1, 196, 197, and 198. Third-Party Defendant Smith’s objections, therefore, should be overruled, and Plaintiff should be required to amend his responses and produce any documents withheld. Page 16 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725 VIII. THIRD-PARTY DEFENDANT PALASOTA’S DISCOVERY RESPONSES 59. On May 17, 2022, Plaintiff informed Intervenors that Palasota is on active military duty and therefore needed additional time to respond to discovery. Nevertheless, on June 7, 2022 Palasota filed his Initial Disclosures, which puts to doubt his inability to respond to Intervenors’ Discovery Requests. 60. Further, Palasota is represented by the same counsel as Bryan and Smith, who have been actively frustrating Interventors’ attempts to obtain proper discovery responses for over four (4) months. Palasota has delayed his responses for over one hundred twenty (120) days and after multiple requests, his attorney has provided no indication of when, if ever, Intervenors will receive their responses. 61. Intervenors, therefore, request an Order requiring Palasota respond to Intervenors’ Discovery; that any objections be deemed waived; and that his responses to Intervenors’ Requests for Admission be deemed admitted by operation of law. IX. EXPENSES OF MOTION 62. Intervenors have incurred expenses in preparing and filing this motion to obtain relief. Under Texas Rule of Civil Procedure 215.1(d), Intervenors are entitled to reasonable expenses incurred in obtaining the order, including attorney’s fees, in the amount of $2,462.50 Attached is the declaration of David R. Gantz in support of this fee request. X. REQUEST TO SET HEARING 63. Intervenors request that a hearing on this matter and for Intervenors’ pending Motion to Determine Sufficiency of Plaintiff Bryan’s Responses to Requests for Admission be set on the Court’s docket at an early date. Page 17 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725 XI. PRAYER WHEREFORE, PREMISES CONSIDERED, Intervenors RONALD PETERSEN and JULIE PETERSEN respectfully request the Court set this motion for hearing and, after the hearing, to enter an Order compelling Plaintiff BOYD BRYAN, Third-Party Defendant CODY W. PALASOTA, and Third- Party Defendant THOMAS H. SMITH III to respond completely to Intervenors’ discovery requests; striking Plaintiff and Third-Party Defendants objections to Intervenors’ requests; deeming Third-Party Defendant PALASOTA’s admissions admitted; and directing Plaintiff BRYAN, Third-Party Defendant PALASOTA, Third-Party Defendant SMITH and their attorneys to pay Intervenors $2,462.50 for the reasonable expenses and attorney fees incurred in filing this motion; and for such other and further relief to which they show themselves justly entitled. Respectfully Submitted, By: /s/ David Gantz David Gantz State Bar No. 24087559 dgantz@beardandbarks.com Justen S. Barks State Bar No. 24087142 jbarks@beardandbarks.com BEARD & BARKS, PLLC 5005 Riverway Dr., Ste 250 P.O. Box 22171 Houston, Texas 77056 Tel: (832) 317-6761 Email for Rule 21a Service: edocs@beardandbarks.com ATTORNEYS FOR INTERVENORS Page 18 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725 CERTIFICATE OF CONFERENCE I hereby certify that on Friday, August 26, 2022, I conferred with counsel for Respondents via email and indicated that I extended Respondents a deadline of September 9, 2022 to prepare and serve responsive documents, and that on the date of filing of the above Intervenors’ Motion to Compel, no documents, responses, or privilege logs for any of the Respondents have been received by my office. /s/ David R. Gantz David R. Gantz CERTIFICATE OF SERVICE I hereby certify that on September 22, 2022, a true and correct copy of the foregoing MOTION TO COMPEL was served in accordance with the Texas Rules of Civil Procedure, and pursuant to the Court’s Order Granting Rule 106 Service dated September 30, 2021, on all parties as follows: Kevin Daugherty Red592003@yahoo.com Defendant, Pro Se Gary Weiner Roger G. Jain & Associations, P.C. 9301 Southwest Freeway, Ste 250 Houston, Texas 77074 Gary@rogergjain.com Attorney for Plaintiff Attorney for Defendants Smith & Palasota /s David R. Gantz David R. Gantz Page 19 of 19 Intervenors’ Motion to Compel Cause No. 20-CV-0725 Filed: 5/16/2022 5:27 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 64555000 By: Shailja Dixit 5/17/2022 8:08 AM CAUSE NO.: 20-CV-0725 BOYD BRYAN, § IN THE DISTRICT COURT OF Plaintiff, § § v. § § KEVIN DAUGHERTY, § GALVESTON COUNTY, TEXAS Defendant. § § RONALD PETERSEN and JULIE § PETERSEN, § Intervenors. § 122nd JUDICIAL DISTRICT PLAINTIFF BRYAN’S MOTION TO WITHDRAW AND AMEND ADMISSIONS TO THE HONORABLE JUDGE OF THIS COURT: Plaintiff, BOYD BRYAN, moves the Court for an order permitting withdrawal of admissions deemed made as a result of certain requests for admissions and for permission to file a response to those requests. In support of this Motion, Plaintiff shows the following: I. PROCEDURAL BACKGROUND 1. On March 26, 2022, Intervenors RONALD PETERSEN and JULIE PETERSEN filed their First Amended Petition in Intervention, seeking to join two new Third-Party Defendants (Attorneys THOMAS H. SMITH III and CODY W. PALASOTA) and assert additional causes of action against Plaintiff for violations of the Texas Uniform Fraudulent Transfer Act (“TUFTA”), TEX. BUS. & COM. CODE § 24.001, et seq., and for civil conspiracy. As part of their Petition, Intervenors attached 54 pages of discovery requests to Plaintiff and the Third-Party Defendants, which included Requests for Admissions, Requests for Production, and Interrogatories. (The relevant Requests for Admissions and Interrogatories to Plaintiff BRYAN, including Plaintiff’s amended answers and responses to same, are attached to this Motion as Exhibit A.) Intervenors' Exhibit 1 PLAINTIFF BRYAN’S MOTION TO WITHDRAW AND AMEND ADMISSIONS – Page 1 2. Plaintiff and the Third-Party Defendants filed their Motion to Strike Intervenors’ First Amended Petition in Intervention and Third-Party Complaint in its entirety, asserting that the causes of action alleged against the Third-Party Defendants were unsupportable as a matter of Texas law and that Intervenors’ petition, as amended, was a frivolous pleading. Were the Court to grant said Motion to Strike in its entirety, and strike Intervenors’ First Amended Petition in Intervention, the embedded discovery requests would be stricken with it; were the Motion to be granted only in part, such ruling would still reshape the issues properly before the Court, thereby changing the scope of what would be subject to discovery in this case. 3. As of this filing, the Court has not yet set a date for hearing by submission or oral hearing on the Motion to Strike Intervenors’ First Amended Petition in Intervention and Third- Party Complaint. II. FACTUAL BACKGROUND 4. Plaintiff’s Responses to the Requests for Admissions were due to be served on counsel for Intervenors on April 29, 2022. Plaintiff have not yet responded to Intervenors’ discovery requests for several reasons: a. Plaintiff’s counsel, Gary Wiener, was scheduled for attorney vacation from April 19-30, 2022, and Intervenors’ counsel David Gantz had been made aware of this by vacation letter dated February 21, 2022. Due to the voluminous nature of Intervenors’ discovery requests, and the pendency of Plaintiff’s Motion to Strike and the very strong likelihood of said Motion being granted in whole or in part, Plaintiff’s immediate compliance with the discovery requests would have unnecessarily (and further) increased his attorney’s fees and costs. The Court’s ruling would, as a result, render all of Intervenors’ discovery requests moot, and Plaintiff would have wasted money and resources in attempting to provide timely responses. PLAINTIFF BRYAN’S MOTION TO WITHDRAW AND AMEND ADMISSIONS – Page 2 b. On March 29, 2022 – three days after filing their amended Petition – Intervenors filed a Motion to Disqualify Plaintiff’s law firm, Roger G. Jain & Associates, P.C., based in part on the frivolous causes of action raised in the amended Petition. The Court heard oral argument on said Motion, and Plaintiff’s Response thereto and associated Motion for Sanctions, on May 6, 2022, but deferred its decision until the parties had supplemented their arguments in writing. As of the filing of this Motion, the Court has not yet rendered its decision. Were Intervenors’ Motion to Disqualify somehow to be granted, Plaintiff would be unable to adequately object and respond to Intervenors’ discovery requests; thus, Plaintiff considered it appropriate and prudent to attempt to wait to respond to discovery until the Court had ruled on at least Intervenors’ Motion to Disqualify, and at best both said Motion and Plaintiff’s Motion to Strike. c. Plaintiff is entitled to, and contemporaneously with the filing of this Motion requests, a protective Order to exclude all of Intervenors’ discovery requests that seek to violate Plaintiff’s attorney-client and work-product discovery privileges, pursuant to TEX. R. CIV. P. 192.3, TEX. R. CIV. P. 192.5(a) and TEX. R. EVID. 503(b); and to protect the trial strategy, mental impressions, and thought processes of Plaintiff’s attorneys pursuant to TEX. R. CIV. P. 192.5(a). Plaintiff had hoped that the filing of this Motion and their request for protective Order would not be necessary, as Plaintiff is confident that Texas law solidly and completely supports both his Response to the Motion to Disqualify and the Motion to Strike. 5. However, by letter of May 11, 2022, Mr. Gantz notified Mr. Wiener that he intended to move the Court to compel Plaintiff’s discovery responses if not received by May 16. It was only on May 11, therefore, that Plaintiff realized Intervenors would likely try to leverage the letter of the TRCP discovery rules to his further disadvantage; and it was only then that the necessity of this Motion became obvious. 6. Contemporaneously with the filing of this Motion, Plaintiff has served his Objections and Responses to Intervenors’ discovery requests upon their counsel. In support of PLAINTIFF BRYAN’S MOTION TO WITHDRAW AND AMEND ADMISSIONS – Page 3 Plaintiff’s good cause for the late-filed responses, Plaintiff incorporates and refers the Court to the declaration of Plaintiff’s counsel, Gary A. Wiener, attached as Exhibit B. III. ARGUMENT & AUTHORITIES 7. A court may strike or allow a party to withdraw or amend its admissions if there is good cause and no undue prejudice to the adverse party. TEX. R. CIV. P. 198.3; Marino v. King, 355 S.W.3d 629, 633 (Tex. 2011); Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005); Wal- Mart Stores, Inc. v. Deggs, 968 S.W.2d 354, 356 (Tex. 1998). Good cause may be mere accident or mistake. Marino, 355 S.W.3d at 633; Wheeler, 157 S.W.3d at 442; Wal-Mart Stores, 968 S.W.2d at 356. 8. Plaintiff’s untimely service of responses on Intervenors was not intentional. Rather, Plaintiff had anticipated that his pending Motion to Strike would have been granted, obviating any need for Plaintiff to draft and file responses to most of Intervenors’ requests at all. Plaintiff was further under the mistaken belief that Intervenors would await decision on Movant’s Motion to Strike (so that the issues to be litigated in this matter could be properly identified and limited) rather than suddenly insist that Plaintiff respond to their requests before the Court had ruled on what the proper scope of discovery in this matter would be. 9. Plaintiff further shows that Intervenors will not be unduly prejudiced by the Court’s allowing the withdrawal of admissions and the substitution of the responses attached hereto as Exhibit C. Specifically, Intervenors filed their original Petition in Intervention in this cause on December 8, 2020, and have had opportunity to pursue discovery since then – seventeen months ago. The only disposition pending in this cause is oral hearing on Plaintiff’s Motion for Default Judgment against Defendant KEVIN DAUGHERTY, set for May 18, 2022. No trial date has been set, and no docket control order entered, for Intervenors’ Petitions in Intervention and PLAINTIFF BRYAN’S MOTION TO WITHDRAW AND AMEND ADMISSIONS – Page 4 Third-Party Complaint. Intervenors cannot therefore suggest any reliance on Plaintiff’s admissions, and cannot assert that they have been prejudiced or surprised in any way by this motion to withdraw them. 10. The presentation of the merits of this action will be served by permitting Plaintiff to withdraw the deemed admissions and substitute the responses attached as Exhibit C. If the Court strikes the admissions and allows Plaintiff to serve the attached responses, the case will be resolved on the merits instead of by Intervenors’ procedural gamesmanship. TEX. R. CIV. P. 198.3(b); see Wheeler, 157 S.W.3d at 443 n.2; In re Kellogg-Brown & Root, Inc., 45 S.W.3d 772, 777 (Tex. App.—Tyler 2001, orig. proceeding). 11. Plaintiff will show that there is a good faith dispute as to the truth of the several matters made the subject of the deemed admissions; that the matters are at the core of this litigation; and that for justice to be done, these issues should be determined by the preponderance of credible evidence – in the unlikely event they survive the dispositive Motions already pending before the Court. IV. PRAYER WHEREFORE, Plaintiff requests that the Court, after hearing this motion, order the withdrawal of the admissions as set out above, order that the responses on Exhibit C, attached to and served with this Motion, be considered as Plaintiff’s timely responses to the Requests for Admissions, and afford Plaintiff such other and further relief as to which he may be justly entitled. PLAINTIFF BRYAN’S MOTION TO WITHDRAW AND AMEND ADMISSIONS – Page 5 Respectfully submitted, ROGER G. JAIN & ASSOCIATES, P.C. /s/ Gary A. Wiener Gary A. Wiener State Bar No. 21266700 gary@rogergjain.com 9301 Southwest Freeway, Suite 250 Houston, Texas 77074 Tel.: (713) 981-0600 Fax: (888) 200-6848 info@rogergjain.com ATTORNEYS FOR PLAINTIFF CERTIFICATE OF CONFERENCE I hereby certify that on May 12, 2022, I spoke by telephone with David Gantz, counsel for Intervenors, regarding this Motion to Withdraw Deemed Admissions. Mr. Gantz indicated that Intervenors are opposed to this Motion. /s/ Gary A. Wiener Gary A. Wiener (Certificate of service on following page) PLAINTIFF BRYAN’S MOTION TO WITHDRAW AND AMEND ADMISSIONS – Page 6 CERTIFICATE OF SERVICE I hereby certify that on May 16, 2022, a true and correct copy of the foregoing was served in accordance with the Texas Rules of Civil Procedure upon the following: VIA E-MAIL Kevin Daughtery Email: red592003@yahoo.com Facebook Messenger: https://www.facebook.com/kevin.daugherty.5 DEFENDANT PRO SE VIA E-FILING AND EMAIL David Gantz BEARD & BARKS, PLLC 5005 Riverway Dr., Suite 250 P.O. Box 22171 Houston, Texas 77227 (832) 317-6761 dgantz@beardandbarks.com ATTORNEY FOR INTERVENORS /s/ Gary A. Wiener Gary A. Wiener PLAINTIFF BRYAN’S MOTION TO WITHDRAW AND AMEND ADMISSIONS – Page 7 A CAUSE NO.: 20-CV-0725 BOYD BRYAN, § IN THE DISTRICT COURT OF Plaintiff, § § v. § § KEVIN DAUGHERTY, § GALVESTON COUNTY, TEXAS Defendant. § § RONALD PETERSEN and JULIE § PETERSEN, § Intervenors. § 122nd JUDICIAL DISTRICT PLAINTIFF’S OBJECTIONS AND RESPONSES TO INTERVENOR JULIE PETERSEN’S REQUESTS FOR PRODUCTION, INTERROGATORIES, AND REQUESTS FOR ADMISSION TO PLAINTIFF TO: Intervenor, Julie Petersen, by and through her attorney of record, David Gantz, BEARD & BARKS, PLLC, 5005 Riverway Dr., Suite 250, P.O. Box 22171, Houston, Texas 77227, dgantz@beardandbarks.com. Plaintiff, BOYD BRYAN, hereby objects and responds to Intervenor JULIE PETERSEN’s Requests for Production, Interrogatories and Requests for Admission as follows. Respectfully submitted, RO