Motion to Continue 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
1/6/2023 5:53 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Cassandra Walker DEPUTY

CAUSE NO. DC-2 1-04907

BNG MANAGEMENT GROUP, LLC IN THE DISTRICT COURT OF

§§§§§§§§§§§§
Plaintiff

v. DALLAS COUNTY, TEXAS

TOZEE CONSTRUCTION, INC.,
GIANT BLUE, INC., AND JIMMY CHO,
INDIVIDUALLY

Defendants. 101st JUDICIAL DISTRICT

PLAINTIFF’S MOTION FOR CONTINUANCE OF TRIAL AND DISCOVERY
DEADLINE
TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW BNG Management Group, LLC (“BNG”), and moves the Court to continue

the trial and discovery deadline. In Support of this motion, Plaintiff presents for the Court as

follows:

I. INTRODUCTION

1. This case was ﬁled because of a breach of contract by the Defendants. The case was ﬁled on

April 19, 2021.

2. On May 26, 2021, Defendants answered the lawsuit.

3. On June 25, 2021, Plaintiffs served their Required Disclosures, thus starting the discovery

period.

4. On July 6, 2021 Plaintiffs served interrogatories to each of the three (3) Defendants, and a

joint request for production to all three (3) Defendants.

5. On August 6, 2021, Defendants served a 27-page packet of purported responses to the

requests for production and answers to the interrogatories.
None of the three (3) sets of answers to interrogatories were veriﬁed. Zero (0) documents

were produced in response to the requests for production.

Defendants responded to almost every single request for production with “to be

supplemented, if any.” Defendants did not answer a single interrogatory, other than to say

“Subject to [the] obj ection[s], to be supplemented. I do not speak for other co-defendants.”

On August 16, 2021, Plaintiffs ﬁled their ﬁrst motion to Compel Discovery from Defendants.

On September 13, 2021 at approximately 3:00PM, the Court held its ﬁrst hearing on the First

Motion to Compel. The court barely made it into the subject of the hearing because

Defendants complained about conferencing, several of which had already occurred. The

Court ordered the parties to further confer and come back.

10 . On September 29, 2021, the Court held the second hearing on the First Motion to Compel.

The Court made it through a few of the requests, at which point the Court had an emergency

and had to leave so the Court told the Parties it would schedule the continuation of a hearing

in the next week or so.

11. On October 21, 2021, having not heard from the Court, Plaintiff set the third hearing on the

First Motion to Compel for November 17, 2021.

12. On November l, 2021, the Court entered an Order Granting the Motion to Compel,

compelling the documents and information requested. The Order provided Defendants with

fourteen (14) days to comply with the Order.

13. On December 8, 2021, Plaintiff, having received nothing from Defendants since the order,

ﬁled a second motion to compel.
14. On February 14, 2022, and February 21, 2022 the Court held hearings on the Second Motion

to Compel. At the second hearing, the Court verbally admonished Defendants and instructed

them to comply with the Court’s prior Order.

15. On February 18, 2022, three (3) months after the ﬁrst order, Defendant supplemented

Tozee’s (one of the Defendants) interrogatories, and the responses to requests for production.

Defendants continued to fail to comply with the Court’s order as documents and answers are

still missing.

16. On March 9, 2022, Plaintiff sent a letter to Defendants counsel identifying the errors that

remained in the discovery responses.

17. On April 8, 2022, Plaintiff ﬁled a third motion to compel.

18. Plaintiff set the hearing on the motion to compel for July 22, 2022.

19. Plaintiff noticed the depositions of Defendants for July 6, 2022, and July 8, 2022. Defendants

quashed the deposition notices.

20. On August l, 2022, for the ﬁrst time, Defendants ﬁled a Counterclaim.
21. On August 5, 2022, this Court heard the Motion to Quash the Depositions, and instructed the

parties to work out a schedule or come back for a status conference.

22. On October 7, 2022, this Court held a status conference wherein the Court ordered

depositions to take place in October and November of 2022.

23. Also on October 7, 2022, Plaintiff served discovery regarding the newly ﬁled counterclaim.

Defendants have yet to answer the discovery regarding the counterclaim.

24. On November 22, 2022, Plaintiff ﬁled a Fourth Motion to Compel discovery against

Defendants, or in the alternative to strike the counterclaim due to Defendants’ failure to

respond to written discovery.
25. On November 23, 2022, Plaintiff ﬁled a Motion to Compel the deposition of Jae Wook Lee

and for sanctions for disappearing during the middle of a deposition and refusing to return to

ﬁnish his deposition.

26. The soonest hearing date the Court had for those two hearings was January 13, 2023.

27 . Plaintiffs have diligently engaged in discovery. However, due to the failure of Defendants to

respond or comply with the court’s order, further time for discovery will be needed.

28. The depositions of Plaintiff and some depositions of Defendants have been completed.

However, depositions have not been concluded and more time is needed.

29. Following ﬁnalization of fact discovery, Plaintiffs need the ability to engage in expert

discovery.

30. There is insufﬁcient time to complete it before trial, which is set in August. Trial is set for

January 24, 2023.

II. LEGAL STANDARD FOR CONTINUAN CE

31. A party requesting additional time for discovery, whether to obtain evidence or testimony, must
fulﬁll the requirements of TRCP 252 under oath. Verkin v. Southwest Ctr. One, Ltd, 784

S.W.2d, 92, 94 (Tex. App. — Houston [1st Dist] 1989, writ denied).

32. The motion must describe the speciﬁc discovery sought. Wal—Mart Stores Tex., LP v. Crosby,

295 S.W.3d 346, 356 (Tex. App. — Dallas 2009, pet. Denied)

33. A party requesting additional time for discovery, whether to obtain evidence or testimony,
must ﬁilﬁll the requirements of TRCP 252 under oath. Verkin v. Southwest Ctr. One, Ltd,
784 S.W.2d 92, 94 (Tex.App. — Houston [1“ Dist] 1989, writ denied).1

1
A veriﬁcation of Jordan Whiddon, counsel for Plaintiffs, is attached hereto as Exhibit A. Additionally, a veriﬁcation
of approval by Plaintiff BNG Management Group, LLC is also attached hereto as Exhibit B.
34. The motion must describe the speciﬁc discovery sought. Wal—Mart Stores Tex., LP v.

Crosby, 295 S.W.3d 346, 356 (Tex.App. — Dallas 2009, pet. denied).

35. The motion must describe the procedure for which the discovery will be completed and from

Whom it Will be obtained. See, e.g. State v. Wood Oil Distrib., 751 S.W.2d 863, 865

(Tex. 1 988).

36. The motion should describe the evidence or testimony needed. Wal—Mart Stores, 295 S.W.3d

at 356.

37. The motion must state why the discovery is material. J.E.M v. Fidelity & Cas. C0., 928

S.W.2d 668, 676 (Tex.App. — Houston [13‘ Dist] 1996, no writ).

38. The motion must show due diligence by the party seeking the continuance. Risner v.

McDonald’s Corp, 18 S.W.3d 903, 909 (Tex.App. — Beraumont 2000, pet denied).

39. The motion must state why the discovery wasn’t obtainable earlier. Id. at 909.

40. The motion must state that the evidence can’t be obtained from another source. Verkin, 784

S.W.2d at 94.

41. The motion must state that the continuance is not sought for delay, but so that justice may be

done. TEX. R. CIV. P. 252.

42. If a party shows good cause for a motion for continuance, the trial court should grant a

motion for continuance. Garza v. Serrato, 699 S.W.2d 275, 281 (Tex.App. — San Antonio

1985, writ ref‘d n.r.e). The standard of review on appeal would be abuse of discretion.

Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.l986)

III. CASE STATUS AND BASIS FOR CONTINUANCE

43. The Plaintiff has yet to ﬁnish to ﬁnish discovery due to the Defendants’ failure to

Comply with written discovery requests and Court Orders.
44. On November 1, 2021, the Court entered an Order Granting the Plaintiffs Motion to Compel,

compelling the documents and information requested. The Order provided Defendants with

fourteen (14) days to comply with the Order.

45. Defendants did not amend either the interrogatory answers or responses to production Within

the period mandated by the Order. Plaintiff then ﬁled a Second Motion to Compel Discovery

from Defendants on December 8, 2021.

46. Plaintiff s Second Motion to Compel was heard on February 14, 2022. The day of the hearing,

Defendants represented to the Court that they were going to amend and comply that day.

Therefore, the Court rescheduled the hearing for February 21, 2022.

47. On February 14, 2022, Defendants reproduced much of what had already been produced,

removed some documents that had already been produced, and failed to produce many of the

documents requested or fully answer the interrogatories complained of in the Motion

48. On February 18, 2022, four (4) days later, counsel for Defendants served its First Supplement

to Second Amended Response to Plaintiff BNG Management Group, LLC’s First Set of

Interrogatories and Defendant’s Second Amended Response to Plaintiff‘s First Request for

Production, but speciﬁcally captioned the response as having been made by Tozee

Construction, Inc., (“Tozee”) only, instead of “Defendants” which was the case in all previous

discovery responses and responsive pleadings. Attached to these were the documents

Defendants were notiﬁed had been removed from the recent amendment.

49. On February 21, 2022, the Court began to go through the remaining issues. Defendants

represented they would produce the documents. The Court admonished Defendants for having

failed to produce the documents and provide the answers for months. The Court ran out of time

and claimed it would review the motion and requests. The proposed order reﬂecting the Court’s
determination has been on ﬁle since then, but hasn’t ever been signed.

50. Even after the admonishment, Defendants’ First Supplement to Second Amended Answers to

Interrogatories and responses to Plaintiff‘s Requests for Production remained deﬁcient, so

Plaintiff reached out to Defendant’s counsel Via letter on March 9, 2022, to address the

remaining deﬁciencies by March 31, 2022.

51. On April 8, 2022, having heard nothing, Plaintiff had to ﬁle a third motion to compel which

has not yet been heard.

52. Plaintiff needs the following to be able to prepare for trial:

a. The conclusion of the deposition of Jimmy Cho;

b. The conclusion of the deposition of the corporate representative of Giant Blue, Inc.;2

53. Plaintiff is further still missing the following document categories (to the extent they exist):

a. The carrollton mechanic’s lien;

b. The Irving contract;

c. The Dallas contract;

d. The photos that are contained within the text messages exchange by the parties and

others;

e. Agreements with subcontractors for work;

f. Payments to subcontractors for work;

g. A list of subcontractors used;
h. Bids from subcontractors;

i. Change orders for the work at the properties;

j. The signed fee agreement with Defendants’ counsel;

2
The areas of inquiry of such a deposition are on ﬁle with the Court as they are in the deposition notice attached to
the Motion to Quash the Deposition.
The fee statements from the work performed by Defendants’ counsel;

Licenses showing authority to work;

Criminal convictions;

Lien releases;

Statements made by Plaintiff or Defendants;

Photos of the work;

Audio recordings;

Notes regarding the work or the relationship between the parties;

S. Names of persons with knowledge of relevant facts.

54. In addition, Plaintiff needs the following documents relating to the Coutnerclaim.

a. Request No. 24
— documents supporting the 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 the counter-petition, 1]

17.;

Request No. 25 — the alleged bounced check referenced in the counter-petition, 11 18.;

Request No. 26
— 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 the counter-

petition, 11 23.

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.

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

services were for a fee, as alleged in your counter-petition, 11 24.

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

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

complete the two locations, as alleged in the counter-petition, 11 31.
Request No. 32 — documents supporting the contention that Plaintiff charged the

franchisees a signiﬁcant amount of money, as alleged in the counter-petition, 1] 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.

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

Plaintiff as alleged in the counter-petition, 11 38.

Request No. 35
— documents supporting the claim that BNG Management, LLC is the

owner of any property on which Defendants seek judicial foreclosure.

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.

. 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, 1] 56.

. 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. . .”

55. Plaintiff has been trying to get the relevant documents described above for more than a year.

Plaintiff has been forced to ﬁle four (4) motions to compel. Due to the Court’s busy schedule,

it’s taken around a month each time a hearing is set. Multiple hearings were rescheduled by

the Court. As a result, Plaintiff has been unable to obtain the documents sooner because

Defendants are ignoring a Court Order and have abused discovery.

56. Defendants quashed the party depositions, which were only take a few months ago. Plaintiff

needs the conclusions of the depositions because the testimony of Defendants is key to the

claims and defenses in this case. Defendants have been unable to get the depositions sooner

because Defendants have reﬁlsed to produce them and are ignoring a Court Order to produce

documentary evidence that could be used at the depositions.

IV. ADDITIONAL GROUND — TRIAL CONFLICT
57. As an additional ground, Plaintiff’s counsel is set for trial on January 23, 2022 in the case

styled as Hard Rock Ready Mix, LLC d/b/a Reliable Concrete v. AM Construction &

Specialty Services GP, LLC and AMX Construction and Specialty Services, LP; Cause No.
DC-19-18598 in the 44th Judicial District Court of Dallas County, Texas.

58. Plaintiff’ s counsel anticipates going to trial in the other matter, which is an older case and

begins the day before this trial.

59. As Plaintiff’s counsel cannot be in two places at once, Plaintiff requests a continuance of this

trial.

V. CONCLUSION AND PRAYER

60. Plaintiff requests this continuance so that the Parties can complete discovery.

61. Plaintiff requests this continuance of trial and the discovery deadline to allow Plaintiff to get

necessary testimony and documents before trial.

62. Plaintiff requests this continuance so it can try the earlier ﬁled other case.

63. This continuance is not sought for delay but so that justice may be done.

WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfully requests that this

matter be set for hearing at which time the Court remove this matter from its present January 24,

2023 setting, that the Court continued the discovery deadline, and for such other and further relief,

both at law and in equity, to which the Parties may be justly entitled.

Respectfully submitted,

SONG WHIDDON, PLLC
/s/ Jordan Whiddon

TAILlM SONG
State Bar No. 00792845
tsong@songwhiddon.com
JORDAN WHIDDON
State Bar No. 240104313
jwhidd0n@songwhiddon.com
8111 LBJ Freeway, 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 6th day of January, 2023.

/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 January 6, 2023 by:

/_s/J0rcgm Whiddon

Jordan Whiddon
STATE OF TEXAS

603000
COUNTY OF DALLAS §

BEFORE ME, the undersigned Notary Public, on this day
personally appeared Kevin 0k,
known to me to be the authorized corporate
representative of BNG Management Group, LLC,
who, being by me duly sworn, on their oath deposed and said that he has read the
foregoing BNG
Management Group, LLC’s Motion for Continuance of Trial and Discovery Deadline, and he has
agreed to the continuance on BNG Management’s behalf.

W451”?
SWORN TO AND SUBSCRIBED before me, by Kevin Ok, this [P‘H‘
day of
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JANA/Q V , 2023.

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I’IIIICOU
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: 71580386
Status as of 1/9/2023 10:44 AM CST

Associated Case Party: BNG MANAGEMENT GROUP, LLC

Name BarNumber Email TimestampSubmitted Status
Tailim Song tsong@songwhiddon.com 1/6/2023 5:53:11 PM SENT
Yuliana Ramirez yuliana@songwhiddon.com 1/6/2023 5:53:11 PM SENT
Administrative Staff admin@songwhiddon.com 1/6/2023 5:53:11 PM SENT
Jordan Whiddon jwhiddon@songwhiddon.com 1/6/2023 5:53:11 PM SENT

Case Contacts

Name BarNumber Email TimestampSubmitted Status
William Chu wmchulaw@aol.com 1/6/2023 5:53:11 PM SENT
Jordan Whiddon 24093350 jwhiddon@songwhiddon.com 1/6/2023 5:53:11 PM SENT
Yuliana Ramirez yuliana@tailimsong.com 1/6/2023 5:53:11 PM SENT
Tailim Song tsong@tailimsong.com 1/6/2023 5:53:11 PM SENT
Law Offices ofWilliam Chu docs.wmchulaw@gmail.com 1/6/2023 5:53:11 PM SENT
william Knisley knisley.wmchulaw@gmail.com 1/6/2023 5:53:11 PM ERROR
Chris LValentine cvalentine@tailimsong.com 1/6/2023 5:53:11 PM SENT
Office Efiles wmchulawefile@gmail.com 1/6/2023 5:53:11 PM SENT
Abigael Campbell acampbell@tailimsong.com 1/6/2023 5:53:11 PM SENT

Case Info

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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

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

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