Motion to Continue in THE ROMACK COMPANY, vs. JP-BENT TREE, LP,, et al| Trellis.Law

On April 30, 2019 a Motion,Ex Parte was filed involving a dispute between The Romack Company,, and Jp-Bent Tree, Lp,, Rec Gp, Llc, Re Closing, Llc, for CNTR CNSMR COM DEBT in the District Court of Dallas County.

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FILED
DALLAS COUNTY
8/20/2019 11:10 AM
FELICIA PITRE
DISTRICT CLERK

Rhonda Burks
CAUSE NO. DC-19-06155

THE ROMACK COMPANY, INC., § IN THE DISTRICT COURT OF

Plaintiff, g

V. g DALLAS COUNTY, TEXAS

JP BENT TREE, LP, REC GP, LLC, §§

and RE CLOSING, LLC, §

Defendants. g 44th JUDICIAL DISTRICT

DEFENDANTS’ MOTION TO CONTINUE
AND MOTION FOR LIMITED EXPEDITED DISCOVERY

Defendants JP Bent Tree, LP (“Bent Tree”), REC GP, LLC (“REC”), and RE Closing, LLC

(“RE Closing”) (collectively, “Defendants”) ﬁle this Motion t0 Continue and Motion for Limited

Expedited Discovery (“Motion”) against Plaintiff The Romack Company (“Plaintiff’ or

“Romack”). In support thereof, Defendants shows as follows:

I. SUMMARY OF MOTION AND RELIEF REQUESTED
Defendants respectfully request that the Court:

1. Continue consideration 0f Plaintiff and Holmgren Johnson: Mitchell Madden, LLP’s
(“HJMM”) Motion t0 Dismiss Pursuant t0 the Texas Citizens’ Participation Act (the
“Motion t0 Dismiss”) for a period not t0 exceed more than 120 days after service 0f the
Motion t0 Dismiss, in accordance with Tex. CiV. Prac. & Rem. Code § 27.004(c); and

2. Grant Defendants the opportunity t0 take limited expedited discovery before
responding t0 Romack and HJMM’S Motion t0 Dismiss, pursuant t0 Tex. CiV. Prac. &
Rem. Code § 27.006(b).

Under the Texas Citizens’ Participation Act (“TCPA”), the Court may allow discovery in advance

of the hearing on Romack and HJMM’S Motion t0 Dismiss for “good cause.” Tex. CiV. Prac. &
Rem. Code § 27.006(b). The Court may also “extend the hearing date t0 allow discovery,” so long

as the hearing occurs within 120 days 0f service 0f the Motion t0 Dismiss. Id. § 27.004(0).
Here, good cause exists t0 allow Defendants t0 take limited expedited discovery in order

t0 satisfy their evidentiary burden in responding t0 Romack and HJMM’S Motion t0 Dismiss.

Indeed, the underlying pleading subject 0f the Motion t0 Dismiss is Defendants’ Motion t0

Disqualify HJMM as counsel for Romack based 0n alleged Violations 0f the Texas Rules 0f

Professional Conduct and/or based 0n case precedent ﬁnding disqualiﬁcation in similar

circumstances. Despite setting a motion for expedited discovery 0n the Motion t0 Disqualify and

serving a subpoena 0n HJMM t0 determine what information it has in its possession that may

Violate the Rules and/or case precedent, Romack and HJMM have failed and refused t0 respond t0

such discovery, leaving Defendants in the precarious position t0 argue based only 0n publicly

available information, while Romack and HJMM submit self—serving declarations and afﬁdavits

attempting t0 rebut Defendants’ claims. Defendants must have an opportunity t0 conduct limited

discovery t0 defend against the self—serving information presented by Romack and HJMM.

Accordingly, Defendants requests that the Court grant this Motion, continue consideration 0f

Romack and HJMM’S Motion t0 Dismiss, and permit Defendants t0 take limited expedited

discovery from Romack and HJMMI t0 support its response t0 the Motion t0 Dismiss as further

set forth below?

1
Discovery is warranted as to both Romack and HJMM because HJMM has included itself as a party to the Motion
to Dismiss and has submitted a self—serving and conclusory declaration in support of that motion.

2
In addition to the discovery sought by this Motion, Defendants also seeks the Court’s permission to depose the
corporate representative of Lamberth Ratcliffe Covington, PLLC (“LRC Legal”) prior to hearing on Romack and
HJMM’s Motion to Dismiss. See Abraham, 509 S.W.3d at 615-16 (noting that discovery permitted by the TCPA may
encompass Witnesses beyond movant having relevant knowledge). LRC Legal was legal counsel Who originally sent
a notice and demand regarding work performed by Romack to JP Bent Tree. See Def.’s Mot. to Dismiss, EX. A-3.
These demand communications occurred shortly after Jordan was removed as General Partner of JP Bent Tree
pursuant to this Court’s order. A deposition of LRC Legal will serve to determine whether LRC Legal was
communicating With Jordan about Romack, Why the delay in demand occurred, and whether HJMM received
conﬁdential information from LRC Legal that could be used against JP Aberdeen here.
II. PROCEDURAL BACKGROUND
Defendants ﬁled a Motion t0 Disqualify Romack’s Counsel, HJMM, 0n June 26, 2019. In

connection with that motion, 0n July 9, 20 1 9, Defendants ﬁled a Motion for Expedited Discovery,

which seeks discovery from Romack (and HJMM) in preparation for the hearing on the Motion to

Disqualify. Thereafter, 0n July 26, 20 1 9, Romack ﬁled a Motion t0 Dismiss pursuant t0 the TCPA,

directed at Defendants’ substantive claims regarding the invalidity 0f the subj ect liens. Since then,

0n August 6, 2019, Romack and HJMM jointly ﬁled an additional Motion t0 Dismiss pursuant t0
the TCPA—directed at Defendants’ Motion t0 Disqualify, arguing that Defendants’ efforts t0

disqualify HJMM as Romack’s counsel relate t0 Romack’s exercise 0f their rights t0 associate and
t0 petition. At an emergency hearing before the Court 0n August 15, 2019, Romack’s counsel

indicated that they would argue that Defendants’ previous Motion for Expedited Discovery related

t0 the Motion t0 Disqualify was suspended in light 0f its instant Motion t0 Dismiss pursuant t0 the

TCPA regarding Defendants’ Motion t0 Disqualify.

Although Defendants believe that their Motion t0 Disqualify (and, correspondingly, their

Motion for Expedited Discovery 0n the Motion t0 Disqualify) must be heard before any motion t0

dismiss pursuant t0 the TCPA, in an abundance 0f caution, Defendants ﬁle this Motion t0 Continue

and Motion for Limited Expedited Discovery in response t0 Romack and HJMM’S Motion t0

Dismiss Defendants’ Motion t0 Disqualify pursuant t0 the TCPA.

III. ARGUMENTS & AUTHORITIES
A. The TCPA permits a continuance t0 allow for limited discovery.

The TCPA expressly allows for “speciﬁed and limited discovery relevant t0 the motion”

upon a showing 0f good cause. See Tex. CiV. Prac. & Rem. Code §§ 27.006(b), 27.003(b); see

Abraham v. Greer, 509 S.W.3d 609, 615 (Tex. App.—Amarillo 2016, pet. denied) (holding
TCPA’S provision 0f limited discovery saves it from Violating Texas citizens’ right t0 prosecute

civil claims in Texas state courts); Warner Bros. Entm ’t, Inc. v. Jones, N0. 03-16-00009-CV, 2017

WL 675187, at *1 (Tex. App.—Austin Dec. 21, 2017, pet. granted) (noting that the “trial court

allowed limited discovery, including document production and the deposition 0f [the TCPA

movant] before conducting a hearing”); In re Bandin, 556 S.W.3d 891, 895 (Tex. App.-H0ust0n

[14th Dist] 2018, no pet.) (afﬁrming trial court’s order allowing TCPA non-movant t0 depose

TCPA movants). Indeed, as recognized by the Abraham court, the TCPA’S provision 0f limited

discovery saves the statute from Violating Texas citizens’ right t0 pursue their claims in Texas state

court. See Abraham, 509 S.W.3d at 615 (“A11 courts shall be open, and every person for any injury

done him, in his lands, goods, person, 0r reputation, shall have remedy by due course 0f law”). If

the Court allows for limited discovery, it may extend the hearing date t0 120 days after service 0f

the motion. Id. § 27.004(c).

B. Good cause supports Defendants’ limited document requests and limited depositions
0f Romack and HJMM.3

Good cause exists here t0 permit Defendants speciﬁc and limited discovery because,

without such discovery, Defendants will be prejudiced in their ability t0 fully support through

evidence their motion t0 disqualify HJMM as counsel for Romack and rebut the conclusory and

self—serving assertions 0n which Romack and HJMM rely in their Motion to Dismiss and

supporting declaration and afﬁdavits. Indeed, among other admissions, HJMM now admits in its
supporting Declaration that Romack was “referred t0 [HJMM] by Mark Jordan [“Jordan”] who

knew him through an entity that was controlled by him, JP-Aberdeen GP, LLC and JP-Bent Tree

.”4
GP, LLC. . . This “referral” begs numerous questions regarding the motivation behind Jordan’s

3
In support of its argument that good cause exists to seek this discovery, JP Aberdeen incorporates by reference, as if
fully stated herein, its motion to disqualify previously ﬁled in this action.
4
Def.’s Mot. to Dismiss, EX. C., Madden Decl. at 1]
3.
referral t0 a law ﬁrm that had previously—and continues—to represent him in litigation that

touches 0n the facts at issue here. Furthermore, HJMM also admits that its previous representation
in related matters included the receipt and review 0f JP Bent Tree’s “ﬁnances and results 0f

ﬁnancial operations,” which would presumably include invoices and/or information regarding

alleged payments owed t0 contractors like Romack. This information is certainly a subj ect 0f the

litigation and goes t0 JP Bent Tree’s defenses regarding the necessity and reasonableness 0f the

work performed—and amounts charged for the same—for which Romack seeks t0 recover. In

other words, HJMM appears t0 have knowledge 0f information relevant t0 the substantive claims
in this case and would likely be called as an essential witness, i.e., one 0f the bases for Defendants’

Motion t0 Disqualify. At this stage, at a minimum, Defendants must be permitted t0 conduct

limited discovery into these matters.

1. Defendants’ limited requests for production t0 Romack.

First, Defendants seek responses t0 the following limited requests for production from

Romack 0n an expedited basis.

1. A11 documents and communications between Romack and Jordans that concern, refer,
0r relate t0 the “referral” described in HJMM’S Declaration.6

2. A11 documents and communications between Romack and Jordan that concern, refer,
0r relate t0: (i) the work Romack alleges 0r intends t0 allege has been performed at the
JP Bent Tree Property, including as it relates t0 when the work was allegedly performed
and invoiced; (ii) the lien(s) Romack ﬁled 0n the JP Bent Tree Property; and/or (iii) the
above-captioned Lawsuit.

3. A11 invoices for legal fees issued by HJMM t0 Romack that reﬂect a description 0f time
spent by any timekeeper of HJMM.

4. A11 engagement letters between Romack and HJMM.

5
As used herein, “Jordan” will be deﬁned to include Jordan’s afﬁliates, including Sooner National Property
Management, LP.
6
See Def.’s Mot. to Dismiss, EX. C., Madden Decl. at 1]
3.
5. All documents and communications between Romack and HJMM that concern, refer,
or relate to: (i) the work Romack alleges or intends to allege has been performed at the
JP Bent Tree Property, including as it relates to when the work was allegedly performed
and invoiced; (ii) the lien(s) Romack filed on the JP Bent Tree Property; and/or (iii) the
above-captioned Lawsuit.

Each of these categories targets information relevant to Defendants’ motion to disqualify

HJMM as Romack’s counsel—i.e., inter alia, it seeks information relating to: (1) HJMM’s receipt

of confidential information from the former General Partner regarding the former General

Partner’s breaches (and Jordan’s participation in those breaches); (2) whether HJMM received

confidential information through its prior representation of the Partnerships and former General

Partner that it is using to the disadvantage of Defendants in this litigation; (3) whether HJMM was

performing work for the benefit of and/or consulting Romack prior to its alleged date of

engagement in this litigation ultimately relating to the matters at issue in this litigation; (4) whether

HJMM was performing work for the benefit of and/or consulting the former General Partner (and

Jordan, and his affiliates) ultimately relating to the matters at issue in this litigation; and (5)

whether JP Bent Tree’s confidences were disclosed to HJMM, such that they will be used to the

Partnership’s disadvantage in this lawsuit. Good cause, therefore, exists for the Court to permit

Defendants to conduct this limited discovery prior to hearing on Romack and HJMM’s TCPA

Motion.

2. Defendants’ limited requests for production to HJMM.

Given that the Motion to Dismiss was also brought by HJMM in its own capacity, and that

the underlying motion subject to the Motion to Dismiss is Defendants’ Motion to Disqualify

HJMM as counsel, JP Aberdeen also seeks responses to the following limited requests for

production on HJMM on an expedited basis.
1. A11 documents and communications between HJMM and Jordan that concern, refer, 0r
relate t0 the “referral” described in the Declaration 0f Mitchell Madden.7

2. A11 documents and communications between HJMM and Jordan that concern, refer, 0r
relate t0 the Romack, including but not limited t0, the work Romack alleges 0r intends
t0 allege has been performed at the JP Bent Tree Property.

3. A11 documents and communications that HJMM previously received in connection with
the “Constituent’s Lawsuit”8 regarding JP Bent Tree’s “ﬁnances and results 0f ﬁnancial
operations.”

4. A11 engagement letters between HJMM and Romack.
5. A11 invoices for legal fees and time records issued by HJMM t0 Romack.
6. A11 invoices for legal fees issued by HJMM
t0 plaintiffs in the consolidated action

styled, JP Bent Tree GP, LLC, et al. v. RE Closing, LLC, et al., N0. DC-18-14634 (44th
Dist. Ct., Dallas County).

7. A11 engagement letters between HJMM and JP Bent Tree, LP.
8. A11 documents and communications from July 1, 2017 t0 the May 7, 2019 between
HJMM and Romack, including but not limited t0, as it concerns, refers, 0r relates t0:

(i) the work Romack alleges 0r intends t0 allege has been performed at the JP Bent Tree
Property, including as it relates t0 when the work was allegedly performed and
invoiced; (ii) the lien(s) Romack ﬁled 0n the JP Bent Tree Property; and/or (iii) the
above-captioned Lawsuit.

Each 0f these categories targets information relevant t0 Defendants’ motion t0 disqualify

HJMM as Romack’s counsel—i.e., inter alia, it seeks information relating t0: (1) HJMM’S receipt

0f conﬁdential information from the former General Partner regarding the former General

Partner’s breaches (and Mr. Jordan’ s participation in those breaches), (2) whether HJMM received
conﬁdential information through its prior representation 0f the Partnerships and former General

Partner that it is using t0 the disadvantage 0f JP Bent Tree in this litigation, (3) whether HJMM
was performing work for the beneﬁt 0f and/or consulting Romack prior t0 its alleged date 0f

engagement in this litigation ultimately relating t0 the matters at issue in this litigation, (4) whether

7
See Def.’s Mot. to Dismiss, EX. C., Madden Decl. at 1] 3.
8
See Def.’s Mot. to Dismiss, EX. C, Madden Decl. at W 21-23.
HJMM was performing work for the benefit of and/or consulting the former General Partner (and

Jordan, and his affiliates) ultimately relating to the matters at issue in this litigation, and (5)

whether JP Bent Tree’s confidences were disclosed to HJMM, such that they will be used to the

Partnership’s disadvantage in this lawsuit. Good cause, therefore, exists for the Court to permit

JP Aberdeen to conduct this limited discovery prior to hearing on Romack and HJMM’s TCPA

Motion.

3. Defendants’ limited deposition of Romack.

Defendants also seek to take a limited deposition (not to exceed five hours of examination

time) of Romack’s corporate representative. Defendants request that the Court allow this

deposition on an expedited basis given the expedited nature of the TCPA proceedings. Good cause

for this discovery exists for those reasons discussed above.

Defendants seeks a deposition of Romack’s corporate representative on the following

relevant topics:

1. All documents and communications produced in response to Defendants’ Requests for
Production described in this Motion.

2. Romack’s engagement of HJMM.

3. All communications with HJMM prior to May 8, 2019.

4. The invoices Romack has submitted in connection with work he alleges to have
performed in this lawsuit and for which he seeks to recover.

5. Romack’s communications with Jordan relating to the instant lawsuit, the work for
which he seeks to recover, and/or the lien(s) he has placed on the subject property.

6. Romack’s communications with Jordan relating to the lawsuit styled: (i) JP Bent Tree
GP, LLC, et al. v. RE Closing, LLC, et al., No. DC-18-14634; and/or (ii) JP Bent Tree,
LP v. JP Bent Tree GP, LLC, et al., No. DC-19-07168.

7. Romack’s engagement of HJMM.

8. Romack’s engagement of Lamberth Ratcliffe Covington, PLLC.
9. Invoices and legal fees issued by HJMM to Romack.

4. Defendants’ limited deposition of HJMM.

Defendants also seek to take a limited deposition (not to exceed five hours of examination

time) of HJMM’s corporate representative. Defendants request that the Court allow this deposition

on an expedited basis given the expedited nature of the TCPA proceedings. Good cause for this

discovery exists for those reasons discussed above.

Defendants seek a deposition of HJMM’s corporate representative on the following

relevant topics:

1. All documents and communications produced in response to Defendants’ Requests for
Production described in this Motion.

2. Romack’s engagement of HJMM.

3. The matters described in Mr. Madden’s August 9, 2019 Declaration submitted in this
action, including but not limited to: (i) the information HJMM obtained regarding JP
Bent Tree, as discussed in Paragraph 7 of Mr. Madden’s August 9, 2019 Declaration
submitted in this action; (ii) the information relating to the “conducts and complaints
of RE Closing” that Mr. Madden claims to have received in connection with HJMM’s
representation of the former General Partner and Jordan, as discussed in Paragraph 23
of Mr. Madden’s August 9, 2019 Declaration submitted in this action; and (iii) the
financial information that HJMM received regarding JP Bent Tree in connection with
its representation of the former General Partner and Jordan, as discussed in Paragraph
23 of Mr. Madden’s August 9, 2019 Declaration submitted in this action.

4. Communications with Romack prior to May 8, 2019.

5. HJMM’s communications with Jordan that concern, refer, or relate to Romack.

6. The invoices Romack has submitted in connection with work he alleges to have
performed in this lawsuit and for which he seeks to recover.

7. HJMM’s communications, if any, with Lamberth Ratcliffe Covington, PLLC regarding
Romack.

8. HJMM’s correspondence with the undersigned relating to Romack, including but not
limited to, that correspondence identified in Defendants’ motion to disqualify.
9. Invoices and legal fees issued by HJMM t0 Romack.
IV. CONCLUSION & PRAYER

For the foregoing reasons, Defendants respectfully request that the Court grant this Motion

t0 Continue and Motion for Limited Expedited Discovery, continue consideration 0f Romack and

HJMM’S Motion t0 Dismiss for a period not t0 exceed more than 120 days after service 0f Romack

and HJMM’S Motion t0 Dismiss, permit Defendants t0 conduct the speciﬁed and limited discovery

set forth above, and for such other and further relief t0 which it may show itselfjustly entitled.
DATED: August 20, 2019 Respectfully Submitted,

/s/ Jared D. Eisenberg

MW
John
State

Edward
T. Cox III

Bar No. 24003722

Dennis
J.

State Bar No. 24045776
jdennis@lynnllp.com
Jared D. Eisenberg
State Bar N0. 24092382
jeisenberg@lynnllp.com
LYNN PINKER COX & HURST, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201
Telephone: (214) 981-3800
Facsimile: (214) 981-3839

ATTORNEYS FOR DEFENDANTS
JP BENT TREE, LP, REC GP, LLC, and
RE CLOSING, LLC

CERTIFICATE OF CONFERENCE

On August 15, 2019, counsel for Plaintiff informed counsel for Defendants in open Court
that he OPPOSED to the relief requested in this Motion.
is

/s/Jared D. Eisenberg
Jared D. Eisenberg

CERTIFICATE OF SERVICE

I certify that Plaintiff’s counsel of record has been served a true and correct copy of the
foregoing document Via electronic ﬁling on August 20, 2019.

/s/Jared D. Eisenberg
Jared D. Eisenberg

Case Info

Judge

GOLDSTEIN, BONNIE LEE Track Judge’s New Case

Case No.

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Document Filed Date

August 20, 2019

Case Filing Date

April 30, 2019

County

Parties

COX, JOHN T III Attorney for the Defendant
DENNIS, EDWARD JASON Attorney for the Defendant
EISENBERG, JARED D Attorney for the Defendant
HOLMGREN, DENNIS M. Attorney for the Plaintiff
JP-BENT TREE, LP, Defendant
MADDEN, MITCHELL Attorney for the Plaintiff
REC GP, LLC Defendant
RE CLOSING, LLC Defendant
THE ROMACK COMPANY, Plaintiff
Melissa Johnson Attorneys for Plaintiffs
Ruben Garcia Attorney

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Motion,Ex Parte: THE ROMACK COMPANY, vs. JP-BENT TREE, LP,, et al

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