Motion to Compel in BNG MANAGEMENT GROUP, LLC, et al vs. JIMMY CHO, et al| Trellis.Law

On April 19, 2021 a Motion,Ex Parte was filed involving a dispute between Bng Management Group, Llc, Pk Restaurant Group Inc, and Cho, Jimmy, Giant Blue Inc, Tozee Construction Inc, for CNTR CNSMR COM DEBT in the District Court of Dallas County.

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FILED
11/22/2022 4:09 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Cassandra Walker DEPUTY

CAUSE NO. DC-21-04907

BNG MANAGEMENT GROUP, LLC § IN THE DISTRICT COURT OF
§
Plaintifﬁ §
§
v. § DALLAS COUNTY, TEXAS
§
TOZEE CONSTRUCTION, INC., §
GIANT BLUE, INC., AND JIMlVIY CHO, §
INDIVIDUALLY §
Defendants. § IOIST JUDICIAL DISTRICT

PLAINTIFF’S THIRD MOTION TO COMPEL DISCOVERY
FROM TOZEE CONSTRUCTION, INC., GIANT BLUE, INC. AND JIMMY CHO, OR, IN
THE ALTERNATIVE, MOTION TO STRIKE COUNTERCLAIM

COMES NOW BNG management Group, LLC, Plaintiff in the above styled and numbered
cause, and ﬁle this their Third Motion to Compel Discovery, or, in the alternative, Motion to Strike
Counterclaim and would show unto the Court as follows:

I. BACKGROUND

l. This case was ﬁled by Plaintiff in April of 2021.
2. On July 29, 2022, Defendants Tozee Construction, Inc. and Giant Blue, Inc. ﬁled their

Original Counter-Petition.
3. On October 7, 2022, Plaintiff sent its Second Requests for Production to Defendants

requesting the speciﬁc documents supporting the counterclaim.1
4. Defendants failed to respond.
On November 11, 2022, Plaintiff’s counsel sent a follow up email asking where the

responses were?
6. Defendants failed to respond to the email.
7. To date, November 22, 2022, over thirty (30) days after the discovery was served,
Defendants haven’t responded or produced a single document.

1
A true and correct copy of the requests for production are attached hereto as Exhibit “A.”
2
A true and correct copy of the email is attached hereto as Exhibit “B.”

Plaintiffs Second Motion to Further Compel Page 1 of 5
II. ARGUMENT AND AUTHORITIES IN SUPPORT OF MOTION TO

COMPEL

A. Controlling Law

1. The goal of discovery is to uncover the truth so that disputes may be decided by What facts
are revealed, not by what facts are concealed. The Texas Rules of Civil Procedure intended to
allow for broad discovery in order to narrow fact issues and controversies and, thus, promote the
efﬁcient and economical resolution of disputes.3 To accomplish these goals, courts allow a litigant
to discover any non-privileged material, which is relevant to the subject matter involved in a

pending action, or reasonably calculated to lead to evidence relating to any issue that is or may
arise in the pending action.4 Very limited exceptions to the strongly preferred policy of openness
are recognized in Texas.5

2. Courts have inherent authority to enter orders to compel discovery and to allow the parties
relevant discovery.6

B. Documents Not Produced
l. Plaintiffs ask the court to compel Defendants to produce, without ﬁlrther delay, all of the
documents responsive to the following requests:

Request No. 24 documents supporting the contention that Kevin 0k threatened non-
i. —

payment for the Carrollton location if Tozee didn’t “take over and start working on

completing the Dallas location and Irving location” as alleged in the counter-petition,
11 17.;
ii. Request No. 25
— the alleged bounced check referenced in the counter-petition, 11 18.;

iii. Request No. 26 — documents showing Kevin Ok “begged for Tozee Construction to

take over the projects after the first contractor either left or was ﬁred” as outlined in
the counter-petition, 11 23.

3
See, Martinez v. Rutledge, 592 S.W.2d 398, 399 (Tex. Civ. App—Dallas 1979, writ ref’ d n.r.e.) (recognizing
e. g.,

purpose of discovery
to encourage fullest disclosure of facts and issues prior to trial and, thus, rules pertaining to
discovery should be liberally construed).
4
See, e.g., TEX. R. CIV. P. 192.3(a); Barnes v. Whittington, 751 S.W.2d 493, 484-95 (Tex. 1988); Lindsey v. O’Neill,
689 S.W.2d 400, 402 (Tex. 1985).
5
State v. Lowry, 802 S.W.2d 669, 671 (Tex. 1991).
6
See TEx. R. CIV. P. 21501(b).

Plaintiffs Second Motion to Further Compel Page 2 of 5
iv. Request No. 27 — documents supporting the contention that Plaintiff received value

from work provided by Defendants, as alleged in the counter-petition, 11 24.

Requests No. 28
— documents supporting the contention that Plaintiff accepted

services provided by Defendants, as alleged in the counter-petition, 11 24.

Vi. Request No. 29
— documents supporting the contention that Plaintiff knew that

Defendants services were for a fee, as alleged in your counter-petition, 1] 24.

Vii. Request No. 30
— documents supporting the contention that BNG Management, LLC
is a “sham general contractor” as alleged in the counter-petition, 11 30.

viii. Request No. 31
— documents supporting the contention that Kevin 0k was in a rush to

complete the two locations, as alleged in the counter-petition, 11 31.

ix. Request No. 32
— documents supporting the contention that Plaintiff charged the

franchisees a signiﬁcant amount of money, as alleged in the counter-petition, 11 32.

Request No. 33
— documents supporting the money that is alleged to have spent on

construction in support of the unjust enrichment claim in 11 35 of the counter-petition.

Xi. Request No. 34 — documents showing Defendants performed under a contract with

Plaintiff as alleged in the counter-petition, 11 38.
xii. Request No. 35 documents supporting the claim that BNG Management, LLC is the
—

owner of any property on which Defendants seek judicial foreclosure.

xiii. Request No. 36 documents supporting the claim that BNG Management,
— LLC is an
agent of PK Restaurant Group, Inc, as alleged in the counter-petition, 11 56.

xiv. Request No. 37 — documents supporting the contention that PK Restaurant Group, Inc.
is the owner of BNG Management, LLC, as alleged in the counter-petition, 11 5 6.

XV. Request No. 38
— documents supporting the contention in 11 5 7 of the counter-petition

that PK Restaurant Group, Inc. uses BNG Management Group, LLC to “avoid liability
for any obligations incurred...”
III. ARGUMENT AND AUTHORITIES IN SUPPORT OF ALTERNATIVE
MOTION TO STRIKE COUNTERCLAIM

1. Pleading in the alternative to the Motion to Compel, Defendants ﬁled their Original

Counterclaim in August of 2022, more than sixteen (l6) months after the case was ﬁled.

Plaintiffs Second Motion to Further Compel Page 3 of 5
2. Disclosures were served on June 25, 2021, more than fourteen (14) months before the

Original Counterclaim.

3. Should the Court consider discovery as having been closed in accordance with Texas

Rule of Civil Procedure 190.3 (nine months after disclosures), then discovery was closed

as of the time that the Original Counterclaim was ﬁled.

4. Defendants did not seek leave to ﬁle the counterclaim outside the discovery period.

5. Plaintiff would be prejudiced by an inability to conduct discovery related to the Original

Counterclaim should the Court allow the Counterclaim to proceed to trial and would

result in trial by ambush.

WHEREFORE, PREMISES CONSIDERED, Plaintiff BNG Management Group, LLC,

respectfully urges the Court to set this Motion for hearing, and after the hearing, to compel

Defendants to serve responses to Plaintiff s Requests for Production and produce the responsive

documents, or, alternatively, strike the Counter-Petition, as well as provide Plaintiff with all such

further relief to which Plaintiff is justly entitled.

Respectfully submitted,

/s/ Jordan Whiddon

JORDAN WHIDDON
State Bar No. 24093350
jwhiddon@songwhiddon.com
8111 LBJ Freeway, Suite 480
Dallas, Texas 75251
(214) 528-8400 Telephone
(214) 528—8402 Facsimile
ATTORNEYS FOR PLAINTIFF

Plaintiffs Second Motion to Further Compel Page 4 of 5
CERTIFICATE OF SERVICE
A copy of the above and foregoing document was provided to all parties and attorneys of
record on the 22nd day of November, 2022.

/s/ Jordan Whiddon

Jordan Whiddon

CERTIFICATE OF CONFERENCE
Counsel for movant has caused to be delivered to counsel for respondent and counsel for
respondent has received a copy of the proposed motion. At least one attempt to contact the counsel
for respondent followed the receipt by counsel for respondent of the proposed motion. Counsel for
responded has failed to respond or attempt to resolve the matters presented.

Certiﬁed to the Day of November 22, 2022 by:

/s/ Jordan Whiddon

Jordan Whiddon

Plaintiffs Second Motion to Further Compel Page 5 of 5
CAUSE NO. DC-21-04907

BNG MANAGEMENT GROUP, LLC § IN THE DISTRICT COURT OF
§
Plaintiff §
§
V. § DALLAS COUNTY, TEXAS
§
TOZEE CONSTRUCTION, INC., §
GLANT BLUE, INC., AND JIMMY CHO, §
INDIVIDUALLY §
§
Defendants. § 101 ST JUDICIAL DISTRICT

PLAINTIFF BNG MANAGEMENT GROUP. LLC’S SECOND REQUESTS FOR
PRODUCTION TO DEFENDANTS

TO: J
Defendants Tozee Construction, Inc., Giant Blue, Inc., and immy Cho, individually, by
and through their counsel of record William Chu, William Chu Law Firm, 4455 LBJ Freeway,
Suite 1008, Dallas, Texas 75244.

COMES NOW Plaintiff BNG Management Group, LLC (“Plaintiff”), Plaintiff in the above styled

and numbered cause, and serves this its Second Requests for Production to Defendants pursuant to

Rule 196 of the Texas Rules of Civil Procedure and requests that Defendants produce the requested

documents not later than thirty (30) days after service of this request upon Defendants. These are

continuing requests, so to the extent updated information becomes available, Plaintiff requests

Defendants amend and update or supplement Defendants’ responses as said information becomes

available.

Respectfully submitted,

SONG WHIDDON, PLLC

/s/ Jordan Whiddon

TAILIM SONG
State Bar No. 00792845
tsong@songwhiddon.com
EXHIBIT A
Plaintiff BNG’s Second Requests for Production Page 1 of 6
JORDAN WHIDDON
State Bar No. 24093350
jwhiddon@songwhiddon.com
8111 LBJ Fwy, Suite 480
Dallas, Texas 75251
(214) 528-8400 Telephone
(214) 528-8402 Facsimile
ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

A copy of the above and foregoing document was provided to all parties and attorneys of record
on the 7th day of October, 2022.

/s/ Jordan Whiddon

Jordan Whiddon

DEFINITIONS

As used herein, “you,” “your,” and “Defendants” refer to Defendants Tozee Construction,
Inc., Giant Blue, Inc., and J immy Cho, Defendants in the above styled and numbered cause, and
their agents, representatives, attorneys, shareholders, ofﬁcers, directors, parents, subsidiaries,
employees, and afﬁliates.

As used herein, “Plaintiff” refers to BNG Management Group, LLC, Plaintiffs in the above
styled and numbered cause, and their agents, representatives, shareholders, ofﬁcers, directors,
parents, subsidiaries, members, managers, employees, afﬁliates, and attorneys.

As used herein, “Dallas Property” refers to the property addressed at 4727 Frankford Road,
Suite 405, Dallas, Texas 75287.

As used herein, “Irving Property” refers to the property addressed at 2668 N. Beltline Road,
Irving, Texas 75062.

As used herein, “Carrollton Property” refers to the property addressed at 1016 E. Hebron
Pkwy, Suite 130, Carrollton, Texas 75010.

As used herein, the “basis of this suit” means the causes of actions alleged by Plaintiffs which
form the basis of this suit as described in Plaintiffs’ Original Petition.

As used herein, "documents" means any written, printed, typed, drawn, punched, taped, ﬁled,
recorded or graphic matter of any kind or character whatsoever and includes but is not limited to,
the originals and all drafts and non-identical copies (whether different from the originals by reason

Plaintiff BNG’s Second Requests for Production Page 2 of 6
of notations made on such copy of otherwise) of all notes, assignments, security instruments,
contracts, agreements, certiﬁcates, afﬁdavits, statements, papers, books, pamphlets, brochures,
catalogues, periodicals, publications, writings, drawings, blueprints, speciﬁcations, plans, graphs,
charts, analysis, budgets, summaries, diaries, photographs, letters, correspondence, telegrams,
telexes, telephone records, notes, memoranda, books of account, ledgers, ﬁles, work papers,
journals, computer runs, ﬁnancial and business records, checks and Checkbooks, bank statements,
orders, receipts, invoices, bills, delivery documents, work orders, materials, manuscripts, work
sheets, manuals, reports, surveys, studies, tabulations, memoranda or notes of telephone 0r other
conversations, or written communications, minutes of meetings, magnetic or computer tapes, tape
recordings, electronic or Video tape recordings, and any other data or data compilations from which
information can be obtained and translated, if necessary, into reasonably usable form by the person
from whom production is sought, of any nature whatsoever, and all renewals, extensions or
modiﬁcations of any of the above, which are presently in your possession, custody, 0r control, or
any afﬁliated entity, employee, agent, or associated person thereof. You are advised that as long
as you have a superior right to compel the production of a document of a third party (including an
agent, authority, or representative), you have the possession, control of such documents, even
though you do not have the actual physical possession of it.

Whenever the wor "custody" is used in these Requests, it means having possession, custody,
control or access to the items referred to in the Request.

Whenever the term "identify" is used in these Requests, it means give the name, residence
address and telephone number, business address and telephone number and job title of the person/s
that is/are the subject of the Request. If the current information on said person is unknown then
the last known information should be given and designated as "last known information".

Whenever the word "person" is used in these Requests, it includes a natural person, ﬁrm,
association, organization, partnership, business trust, corporation, government agency or body or
public entity.

As used herein, “relating” or “concerning” shall mean constituting, evidencing, reﬂecting,
directly or indirectly relating, connected with or referring to the document or event described.

Whenever the term "writings" is used in these Requests, it means handwriting, typewriting,
printing, photostating, photography and every other means of recording upon any tangible thing,
any form of communication or representation, including words, letters, pictures, sounds or symbols
or any combination thereof.

As used herein, “Parties” refers to Plaintiff and Defendants, collectively.

As used herein, “Lawsuit” shall refer to the suit with the cause number DC-21-049078,
styled as PK Restaurant Group, Inc. and BNG Management Group, LLC v. Tozee Construction,
Inc., Giant Blue, Ina, and Jimmy Cho., currently pending in the County Court at Law No. 4 of
Collin County, Texas.

Plaintiff BNG’s Second Requests for Production Page 3 of 6
INSTRUCTIONS

If Plaintiff claim
any document or other tangible item requested is privileged, please
identify fully the document or other tangible item and state the privilege which it claims applies,
and all facts which Plaintiff contends lead to the existence of privilege, and:

1. Describe generally the subject matter of the writing;
2. Identify each person who has ever had possession, custody, or control of the writing, or
any copy thereof, and
3. Provide all information concerning the writing, and the circumstances thereof, to explain
Plaintiff s claim of privilege and to allow a court to adjudicate the propriety of such a claim

Answer each request for documents separately by listing the documents and by describing
them as deﬁned below. If documents produced in response to this request are numbered for
production, in each response provide both the information that identiﬁes the document and the
document’s number.
For a document that no longer exists or that cannot be located, identify the document, state
how and when it passed out of existence or could no longer be located, and the reasons for the
disappearance. Also, identify each person having knowledge about the disposition or loss of the
document, and identify any other document evidencing the lost document’s existence or any facts
about the lost document.
a. When identifying the document, Plaintiff must state the following:
(l) The nature of the document (e.g., letter, handwritten note).
(2) The title or heading that appears on the document.
(3) The date of the document and the date of each addendum, supplement, or other
addition or change.
(4) The identities of the author, signer of the document, and person on whose behalf or
at whose request or direction the document was prepared or delivered.
b. When identifying the person, Plaintiff must state the following:
(l) The full name.
(2) The present or last known residential address and residential telephone number.
(3) The present or last known ofﬁce address and ofﬁce telephone number.
(4) The present occupation, job title, employer, and employer’s address.

REQUESTS FOR PRODUCTION

REQUEST N0. 24: Any documents supporting your contention that Kevin 0k threatened non-
payment for the Carrollton location if Tozee didn’t “take over and start working on completing the
Dallas location and Irving location” as alleged in your counter-petition, 11 l7.

RESPONSE:

Plaintiff BNG’s Second Requests for Production Page 4 of 6
REQUEST NO. 25: Produce the alleged bounced check referenced in your counter-petition, 11

18.

RESPONSE:

REQUEST N0. 26: Produce all documents showing Kevin 0k “begged for Tozee Construction
to take over the projects after the ﬁrst contractor either left or was ﬁred” as outlined in your
counter-petition, 11
23.

RESPONSE:

REQUEST N0. 27: All documents supporting your contention that Plaintiff received value from
work provided by Defendants, as alleged in your counter-petition, 11 24.

RESPONSE:

REQUEST N0. 28: All documents supporting your contention that Plaintiff accepted services
provided by Defendants, as alleged in your counter-petition, 11 24..

RESPONSE:

REQUEST NO. 29: All documents supporting your contention that Plaintiff knew that
Defendants services were for a fee, as alleged in your counter-petition, 11 24..

RESPONSE:

REQUEST NO. 30: All documents supporting your contention that BNG Management, LLC is a
“sham general contractor” as alleged in your counter-petition, 11 30.

RESPONSE:

REQUEST NO. 31: All
documents supporting your contention that Kevin 0k was in a rush to
complete the two locations, as alleged in your counter-petition, 11 31.

RESPONSE:

REQUEST NO. 32: All documents supporting your contention that Plaintiff charged the
franchisees a signiﬁcant amount of money, as alleged in your counter-petition, 11 32.

RESPONSE:

REQUEST NO. 33: All documents supporting the money you allege to have spent on
construction in support of your unjust enrichment claim in 11 35 of your counter-petition.

Plaintiff BNG’s Second Requests for Production Page 5 of 6
RESPONSE:

REQUEST N0. 34: A11 documents showing you performed under a contract with Plaintiff as
alleged in your counter-petition, 11
38.

RESPONSE:

REQUEST N0. 35: All documents supporting your claim that BNG Management, LLC is the
owner of any property on which you seek judicial foreclosure.

RESPONSE:

REQUEST NO. 36: All documents supporting your claim that BNG Management, LLC is an
agent of PK Restaurant Group, Inc, as alleged in your counter-petition, 11
5 6.

RESPONSE:

RE! QUEST NO. 37: All documents supporting your contention that PK Restaurant Group, Inc.
is the owner of BNG Management, LLC, as alleged in your counter-petition, 1] 56.

RESPONSE:

RE! QUEST NO. 38: All documents supporting your contention in 1] 57 of your counter-petition
thatPK Restaurant Group, Inc. uses BNG Management Group, LLC to “avoid liability for any
obligations incurred. . .”

RESPONSE:

Plaintiff BNG’s Second Requests for Production Page 6 of 6
11/22/22, 4:04 PM Song Whiddon, PLLC Mail - DC-21-04907; Discovery Responses

b ‘7
N
R
Jordan Whlddon

DC-21-04907; Discovery Responses
2 messages

Jordan Whiddon Fri, Nov 11, 2022 at 1:11 PM
To: William Chu
Cc: Tailim Song

Mr. Chu,

On October 7, 2022, Plaintiff served its second requests for production and 2nd interrogatories to Defendants. To date, no response was received. The
responses are multiple days late. Please provide the responses and answers without objection by the end of the day or otherwise correspond with me
about the status of your responses/answers. Otherwise, l'll be forced to move to compel them.

Thanks,
Jordan

SW
L

Jordan Whiddon
Partner
SONG WHIDDON, PLLC
8111 LBJ Freeway, Suite 480
Dallas, Texas 75251
Telephone (214) 528-8400
Fax (214) 528-8402
7
Proud Member of
Texas Bar College

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Jordan Whiddon Tue, Nov 22, 2022 at 11 :43 AM
To: William Chu
Cc: Tailim Song

Mr. Chu,

Please see attached a Motion intend to ﬁle if you refuse to respond to the discovery. Please advise as to your position by today at 4.
|

Thanks,
Jordan
[Quoted text hidden]

E thirdK motion to compel jw 221122.pdf
201

EXHIBIT B

https://mai|.google.com/mai|/u/0/?ik=efd3055533&view=pt&search=all&permthid=thread-a%3Ar—2826380290909808299&simpl=msg-a%3Ar38942863. .. 1/1
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.

Jordan Whiddon on behalf of Jordan Whiddon
Bar No. 24093350
jwhiddon@songwhiddon.com
Envelope ID: 70417965
Status as of 11/23/2022 10:13 AM CST

Associated Case Party: BNG MANAGEMENT GROUP, LLC

Name BarNumber Email TimestampSubmitted Status
Jordan Whiddon jwhiddon@songwhiddon.com 11/22/2022 4:09:43 PM SENT
Administrative Staff admin@songwhiddon.com 11/22/2022 4:09:43 PM SENT
Tailim Song tsong@songwhiddon.com 11/22/2022 4:09:43 PM SENT
Yuliana Ramirez yuliana@songwhiddon.com 11/22/2022 4:09:43 PM SENT

Case Contacts

Name BarNumber Email TimestampSubmitted Status
William Chu wmchulaw@aol.com 11/22/2022 4:09:43 PM SENT
Jordan Whiddon 24093350 jwhiddon@songwhiddon.com 11/22/2022 4:09:43 PM SENT
Yuliana Ramirez yuliana@tailimsong.com 11/22/2022 4:09:43 PM SENT
Tailim Song tsong@tailimsong.com 11/22/2022 4:09:43 PM SENT
Law Offices ofWilliam Chu docs.wmchulaw@gmail.com 11/22/2022 4:09:43 PM SENT
Chris LValentine cvalentine@tailimsong.com 11/22/2022 4:09:43 PM SENT
Office Efiles wmchulawefile@gmail.com 11/22/2022 4:09:43 PM SENT
Abigael Campbell acampbell@tailimsong.com 11/22/2022 4:09:43 PM SENT
william Knisley knisley.wmchulaw@gmail.com 11/22/2022 4:09:43 PM ERROR

Case Info

Judge

WILLIAMS, STACI Track Judge’s New Case

Case No.

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Document Filed Date

January 13, 2023

Case Filing Date

April 19, 2021

County

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Motion,Ex Parte: BNG MANAGEMENT GROUP, LLC, et al vs. JIMMY CHO, et al

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