On May 20, 2020 a
Motion-Secondary
was filed
involving a dispute between
Ipwe, Inc,
Spangenberg, Erich,
and
Diamond, Wendy,
Lucky Diamond Productions, Inc,
for OTHER CONTRACT
in the District Court of Dallas County.
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FILED
4/25/2022 2:11 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Kellie Juricek DEPUTY
CAUSE NO. DC-20-07067
IPWE, INC. and ERICH § IN THE DISTRICT COURT
SPANGENBERG, §
§
§
Plaintiffs/Counter-Defendants, §
§
V. § DALLAS COUNTY, TEXAS
§
§
LUCKY DIAMOND PRODUCTIONS, §
INC., AND WENDY DIAMOND, §
§
§
Defendants/Counter—Plaintiffs. § 95TH JUDICIAL DISTRICT
DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EVIDENCE
OF UNDISCLOSED THEORIES OF RECOVERY
Defendants/Counter-Plaintiffs Lucky Diamond Productions, Inc. and Wendy Diamond
(collectively, “Defendants”), file this Response to Plaintiffs/Counter-Defendants IPwe, Inc. and
Erich Spangenberg’s (collectively, “Plaintiffs”) Motion to Exclude Evidence of Undisclosed
Theories of Recovery, and state as follows:
ARGUMENT
There is no live issue for the Court to decide. Plaintiffs acknowledge that Defendants /
Counter-Plaintiffs have disclosed they are seeking three forms of relief: (1) attorneys’ fees related
to Plaintiffs’ breach of the Senior Advisor Board Agreement (the “Advisor Agreement”); (2)
$300,000 under a Consulting Agreement (the “Consulting Agreement”); and shares of IPwe stock
equaling a three percent (3%) equity interest in IPwe as of January 27, 2020 under a Chairwoman
Agreement (the “Chairwoman Agreement”). Because Defendants are seeking only these three
forms of relief, Plaintiffs’ motion is moot.
Defendants’ Response to Plaintiffs’ Motion to Exclude Evidence of Undisclosed Theories of Recovery-Page 1
As Defendants informed the Court, they are not seeking money damages related to breach
of the Chairwoman Agreement; nor do they seek money damages related to their other claims
concerning the Chairwoman Agreement. Rather, Defendants only seek shares of stock in the
amount of 3% of IPwe as of January 27, 2020, in connection With all of its claims related to the
Chairwoman Agreement—specifically for breach of the Chairwoman Agreement, fraud in
connection with the Chairwoman Agreement, as well as quantum meruit and unjust enrichment
concerning the Chairwoman Agreement.
To the extent Plaintiffs are arguing that Defendants are not permitted to seek 3% shares for
quantum meruit and unjust enrichment, they are far from meeting the legal standard. There is no
unfair surprise or unfair prejudice here, where—as Plaintiffs acknowledge—Defendants have
sought those 3% shares since their First Amended Answer in August 2021, and Defendants
specifically disclosed the method of calculating that measure of damages in their Second Amended
Responses to Request for Disclosures in November 2021. See In re Staff Care Ina, 422 S.W.3d
876, 882 (Tex. App—Dallas 2014) (recognizing that Rule 193’s exclusionary provisions do not
apply when there is “lack of unfair surprise or unfair prejudice”).
CONCLUSION
Plaintiffs’ Motion is moot because Defendants are only seeking the three forms of relief
set forth above. Moreover, because there is no unfair surprise or unfair prejudice here, there is no
basis to prohibit Defendants from presenting their claim to 3% of IPwe stock in connection with
any of their claims.
Defendants’ Response to Plaintiffs’ Motion to Exclude Evidence of Undisclosed Theories of Recovery-Page 2
Dated: April 25, 2022 Respectfully submitted,
/s/ Brandon V. Lewis
Brandon V. Lewis
State Bar No. 24060165
blewis@reidcollins.com
REID COLLINS & TSAI LLP
1601 Elm Street, Suite 4200
Dallas, Texas 75201
T: (214) 420-8900
F: (214) 420-8909
Lisa S. Tsai
State Bar No. 24046999
ltsai@reidcollins.com
REID COLLINS & TSAI LLP
1301 S. Capital of Texas Hwy.
Building C, Suite 300
Austin, Texas 78746
T: (512) 647-6100
F: (512)647-6129
Jeffrey M. Tillotson
Texas Bar No. 20039200
jtillotson@tillotsonlaw.com
Jonathan R. Patton
State Bar N0. 24088198
jpatton@tillotsonlaw.com
TILLOTSON LAW
1807 Ross Avenue, Suite 325
Dallas, Texas 75201
T: (214)382-3041
F: (214) 292-6564
ATTORNEYS FOR
DEFENDANTS/COUNTER—PLAINTIFFS
LUCKY DIAMOND PRODUCTIONS, INC.
AND WENDY DIAMOND
Defendants’ Response to Plaintiffs’ Motion to Exclude Evidence of Undisclosed Theories of Recovery-Page 3
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing document was served by hand-
delivery to counsel herein on April 25, 2022.
/s/ Brandon V. Lewis
Brandon V. Lewis
Defendants’ Response to Plaintiffs’ Motion to Exclude Evidence of Undisclosed Theories of Recovery-Page 4
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.
Jodie Wingerter on behalf of Brandon Lewis
Bar No. 24060165
jwingerter@reidcollins.com
Envelope ID: 63873736
Status as of 4/25/2022 2:17 PM CST
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Lisa STsai |tsai@rctlegal.com 4/25/2022 2:11:04 PM SENT
Brandon Lewis 24060165 blewis@rctlegal.com 4/25/2022 2:11:04 PM SENT
Susie Wade swade@ti||otsonlaw.com 4/25/2022 2:11:04 PM SENT
Kira Lytle klytle@tillotsonlaw.com 4/25/2022 2:11:04 PM SENT
Benjamin Nabors bnabors@tillotsonlaw.com 4/25/2022 2:11:04 PM SENT
Enrique Ramirez eramirez@tillotsonlaw.com 4/25/2022 2:11:04 PM SENT
Jodie Wingerter jwingerter@reidco||ins.com 4/25/2022 2:11:04 PM SENT
Associated Case Party: LUCKY DIAMOND PRODUCTIONS, INC
Name BarNumber Email TimestampSubmitted Status
Jeffrey MTillotson jtillotson@tillotsonlaw.com 4/25/2022 2:11:04 PM SENT
Jonathan RPatton jpatton@tillotsonlaw.com 4/25/2022 2:11:04 PM SENT
Joseph Alrrobali airrobali@ti||otson|aw.com 4/25/2022 2:11:04 PM SENT
EFiling Admin efiling@roggedunngroup.com 4/25/2022 2:11:04 PM SENT
Associated Case Party: ERICH SPANGENBERG
Name BarNumber Email TimestampSubmitted Status
Alan York ayork@reedsmith.com 4/25/2022 2:11:04 PM SENT
Shikendra Rhea srhea@reedsmith.com 4/25/2022 2:11:04 PM SENT
Steve Smith Stevesmith@reedsmith.com 4/25/2022 2:11:04 PM SENT
Alicia Nixon anixon@reedsmith.com 4/25/2022 2:11:04 PM SENT
Mark L.Johansen mjohansen@reedsmith.com 4/25/2022 2:11:04 PM SENT
Julie A.Hardin jhardin@reedsmith.com 4/25/2022 2:11:04 PM SENT
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.
Jodie Wingerter on behalf of Brandon Lewis
Bar No. 24060165
jwingerter@reidcollins.com
Envelope ID: 63873736
Status as of 4/25/2022 2:17 PM CST
Associated Case Party: IPWE, INC
Name BarNumber Email TimestampSubmitted Status
Alicia Nixon anixon@reedsmith.com 4/25/2022 2:1 1 :04 PM SENT
Steve Smith Stevesmith@reedsmith.com 4/25/2022 2:11:04 PM SENT
Shikendra Rhea srhea@reedsmith.com 4/25/2022 2:11:04 PM SENT
Julie A.Hardin jhardin@reedsmith.com 4/25/2022 2:11:04 PM SENT
Erich Spangenberg erich@ipwe.com 4/25/2022 2:11:04 PM SENT
Mark L.Johansen mjohansen@reedsmith.com 4/25/2022 2:11:04 PM SENT
Associated Case Party: WENDY DIAMOND
Name BarNumber Email TimestampSubmitted Status
EFiling Admin efiling@roggedunngroup.com 4/25/2022 2:11:04 PM SENT
Document Filed Date
April 25, 2022
Case Filing Date
May 20, 2020
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FILED 4/25/2022 2:11 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Kellie Juricek DEPUTY CAUSE NO. DC-20-07067 IPWE, INC. and ERICH § IN THE DISTRICT COURT SPANGENBERG, § § § Plaintiffs/Counter-Defendants, § § V. § DALLAS COUNTY, TEXAS § § LUCKY DIAMOND PRODUCTIONS, § INC., AND WENDY DIAMOND, § § § Defendants/Counter—Plaintiffs. § 95TH JUDICIAL DISTRICT DEFENDANTS’ RESPONSE TO PLAINTIFFS’ MOTION TO EXCLUDE EVIDENCE OF UNDISCLOSED THEORIES OF RECOVERY Defendants/Counter-Plaintiffs Lucky Diamond Productions, Inc. and Wendy Diamond (collectively, “Defendants”), file this Response to Plaintiffs/Counter-Defendants IPwe, Inc. and Erich Spangenberg’s (collectively, “Plaintiffs”) Motion to Exclude Evidence of Undisclosed Theories of Recovery, and state as follows: ARGUMENT There is no live issue for the Court to decide. Plaintiffs acknowledge that Defendants / Counter-Plaintiffs have disclosed they are seeking three forms of relief: (1) attorneys’ fees related to Plaintiffs’ breach of the Senior Advisor Board Agreement (the “Advisor Agreement”); (2) $300,000 under a Consulting Agreement (the “Consulting Agreement”); and shares of IPwe stock equaling a three percent (3%) equity interest in IPwe as of January 27, 2020 under a Chairwoman Agreement (the “Chairwoman Agreement”). Because Defendants are seeking only these three forms of relief, Plaintiffs’ motion is moot. Defendants’ Response to Plaintiffs’ Motion to Exclude Evidence of Undisclosed Theories of Recovery-Page 1 As Defendants informed the Court, they are not seeking money damages related to breach of the Chairwoman Agreement; nor do they seek money damages related to their other claims concerning the Chairwoman Agreement. Rather, Defendants only seek shares of stock in the amount of 3% of IPwe as of January 27, 2020, in connection With all of its claims related to the Chairwoman Agreement—specifically for breach of the Chairwoman Agreement, fraud in connection with the Chairwoman Agreement, as well as quantum meruit and unjust enrichment concerning the Chairwoman Agreement. To the extent Plaintiffs are arguing that Defendants are not permitted to seek 3% shares for quantum meruit and unjust enrichment, they are far from meeting the legal standard. There is no unfair surprise or unfair prejudice here, where—as Plaintiffs acknowledge—Defendants have sought those 3% shares since their First Amended Answer in August 2021, and Defendants specifically disclosed the method of calculating that measure of damages in their Second Amended Responses to Request for Disclosures in November 2021. See In re Staff Care Ina, 422 S.W.3d 876, 882 (Tex. App—Dallas 2014) (recognizing that Rule 193’s exclusionary provisions do not apply when there is “lack of unfair surprise or unfair prejudice”). CONCLUSION Plaintiffs’ Motion is moot because Defendants are only seeking the three forms of relief set forth above. Moreover, because there is no unfair surprise or unfair prejudice here, there is no basis to prohibit Defendants from presenting their claim to 3% of IPwe stock in connection with any of their claims. Defendants’ Response to Plaintiffs’ Motion to Exclude Evidence of Undisclosed Theories of Recovery-Page 2 Dated: April 25, 2022 Respectfully submitted, /s/ Brandon V. Lewis Brandon V. Lewis State Bar No. 24060165 blewis@reidcollins.com REID COLLINS & TSAI LLP 1601 Elm Street, Suite 4200 Dallas, Texas 75201 T: (214) 420-8900 F: (214) 420-8909 Lisa S. Tsai State Bar No. 24046999 ltsai@reidcollins.com REID COLLINS & TSAI LLP 1301 S. Capital of Texas Hwy. Building C, Suite 300 Austin, Texas 78746 T: (512) 647-6100 F: (512)647-6129 Jeffrey M. Tillotson Texas Bar No. 20039200 jtillotson@tillotsonlaw.com Jonathan R. Patton State Bar N0. 24088198 jpatton@tillotsonlaw.com TILLOTSON LAW 1807 Ross Avenue, Suite 325 Dallas, Texas 75201 T: (214)382-3041 F: (214) 292-6564 ATTORNEYS FOR DEFENDANTS/COUNTER—PLAINTIFFS LUCKY DIAMOND PRODUCTIONS, INC. AND WENDY DIAMOND Defendants’ Response to Plaintiffs’ Motion to Exclude Evidence of Undisclosed Theories of Recovery-Page 3 CERTIFICATE OF SERVICE I certify that a true and correct copy of the foregoing document was served by hand- delivery to counsel herein on April 25, 2022. /s/ Brandon V. Lewis Brandon V. Lewis Defendants’ Response to Plaintiffs’ Motion to Exclude Evidence of Undisclosed Theories of Recovery-Page 4 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. Jodie Wingerter on behalf of Brandon Lewis Bar No. 24060165 jwingerter@reidcollins.com Envelope ID: 63873736 Status as of 4/25/2022 2:17 PM CST Case Contacts Name BarNumber Email TimestampSubmitted Status Lisa STsai |tsai@rctlegal.com 4/25/2022 2:11:04 PM SENT Brandon Lewis 24060165 blewis@rctlegal.com 4/25/2022 2:11:04 PM SENT Susie Wade swade@ti||otsonlaw.com 4/25/2022 2:11:04 PM SENT Kira Lytle klytle@tillotsonlaw.com 4/25/2022 2:11:04 PM SENT Benjamin Nabors bnabors@tillotsonlaw.com 4/25/2022 2:11:04 PM SENT Enrique Ramirez eramirez@tillotsonlaw.com 4/25/2022 2:11:04 PM SENT Jodie Wingerter jwingerter@reidco||ins.com 4/25/2022 2:11:04 PM SENT Associated Case Party: LUCKY DIAMOND PRODUCTIONS, INC Name BarNumber Email TimestampSubmitted Status Jeffrey MTillotson jtillotson@tillotsonlaw.com 4/25/2022 2:11:04 PM SENT Jonathan RPatton jpatton@tillotsonlaw.com 4/25/2022 2:11:04 PM SENT Joseph Alrrobali airrobali@ti||otson|aw.com 4/25/2022 2:11:04 PM SENT EFiling Admin efiling@roggedunngroup.com 4/25/2022 2:11:04 PM SENT Associated Case Party: ERICH SPANGENBERG Name BarNumber Email TimestampSubmitted Status Alan York ayork@reedsmith.com 4/25/2022 2:11:04 PM SENT Shikendra Rhea srhea@reedsmith.com 4/25/2022 2:11:04 PM SENT Steve Smith Stevesmith@reedsmith.com 4/25/2022 2:11:04 PM SENT Alicia Nixon anixon@reedsmith.com 4/25/2022 2:11:04 PM SENT Mark L.Johansen mjohansen@reedsmith.com 4/25/2022 2:11:04 PM SENT Julie A.Hardin jhardin@reedsmith.com 4/25/2022 2:11:04 PM SENT 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. Jodie Wingerter on behalf of Brandon Lewis Bar No. 24060165 jwingerter@reidcollins.com Envelope ID: 63873736 Status as of 4/25/2022 2:17 PM CST Associated Case Party: IPWE, INC Name BarNumber Email TimestampSubmitted Status Alicia Nixon anixon@reedsmith.com 4/25/2022 2:1 1 :04 PM SENT Steve Smith Stevesmith@reedsmith.com 4/25/2022 2:11:04 PM SENT Shikendra Rhea srhea@reedsmith.com 4/25/2022 2:11:04 PM SENT Julie A.Hardin jhardin@reedsmith.com 4/25/2022 2:11:04 PM SENT Erich Spangenberg erich@ipwe.com 4/25/2022 2:11:04 PM SENT Mark L.Johansen mjohansen@reedsmith.com 4/25/2022 2:11:04 PM SENT Associated Case Party: WENDY DIAMOND Name BarNumber Email TimestampSubmitted Status EFiling Admin efiling@roggedunngroup.com 4/25/2022 2:11:04 PM SENT