Preview
FILED
4/15/2024 10:27 PM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Rosa Delacerda DEPUTY,
CAUSE NO. DC-22-15163
LIONHEAD HOLDINGS LLC, IN THE DISTRICT COURT
Plaintiff,
Vv.
116™ JUDICIAL DISTRICT
HOSSAIN MOHAMMAD DEZHAM,
d/b/a BURGER BUENO; HOSSAIN
MOHAMMAD DEZHAM, Individually;
and SORAB MIRAKI,
Defendants. DALLAS COUNTY, TEXAS
MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE
AND FOR DISCOVERY SANCTIONS
COME NOW, Defendant Sorab Miraki (“Miraki”), and files this trial brief on the failure
by Plaintiff Lionhead Holdings, LLC (“Lionhead”) to mitigate its damages by taking reasonable
actions to find a replacement tenant, or provide documents in response to written discovery
requests that show how much money Lionhead received from the replacement tenant that currently
occupies the commercial space made the basis of its claims in this lawsuit (the “Premises”), but
was not disclosed in response to written discovery requests served on June 26, 2023.
By improperly withholding responsive documents and information, Plaintiff completely
prevented Miraki from having an opportunity to show the extent to which Plaintiff mitigated its
damages, and any finding of fact about Plaintiff's alleged damages would be irredeemably flawed.
This supplemental motion to exclude incorporates, and supplements, Miraki’s Motion to
Exclude Evidence, filed in to the records of this Court on January 4, 2024.
I.
BACKGROUND
1 This case is set for a non-jury trial on April 15, 2024.
2. In his original answer filed January 26, 2023, Miraki requested a jury trial.
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001
3 The Court issued its scheduling order for this case on January 13, 2023, which set
an Initial Trial Setting on January 8, 2024.
4 The January 13, 2023 Scheduling Order also placed this case on a Level 2
Discovery Control Plan.
5 The January 13, 2023 Scheduling Order required the parties to exchange exhibit
lists and any exhibit documents not previously produced during discovery on or before December
26, 2023. Lionhead did not serve or file any exhibit list until January 3, 2024, and Dezham never
served or filed one at all.
6. Because Defendant Hossain Dezham filed his answer on January 10, 2023,
Plaintiff's initial disclosures were due on February 9, 2023, and the discovery period was then set
to close 9 months later — on November 9, 2023. See TEX. R. Civ. P. 190.3(b)(1)(B) and 194.2(a).
7. On June 26, 2023, Miraki served Lionhead with Miraki’s First Written Discovery
to Plaintiff Lionhead, which included interrogatories, requests for production, and requests for
admission. In response, Lionhead served responses on August 7, 2023 (response date agreed to by
Miraki and Lionhead): Plaintiff's Objections and Responses to Sorab Miraki’s First Written
Discovery. A true and correct copy of that document is attached hereto as Exhibit 1. Lionhead
served a brief supplemental response to Interrogatory No. 13 on November 13, 2023. A true and
correct copy of that document is attached hereto as Exhibit 2.
8 The only documents Plaintiff identified in its responses to Miraki’s requests for
production were marked as LIONHEAD000106- LIONHEAD000216.
REQUEST FOR PRODUCTION NO. 1: Please produce all documents you identified in any
response to Miraki’s interrogatories served in this lawsuit.
RESPONSE: See LIONHEAD000001-LIONHEAD000216.
See Exhibit 1, p. 7 of the document.
MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGE 2
002
9 Since serving its initial responses to Miraki’s requests for production on August 7,
2023, Plaintiff did not serve any supplemental responses to Miraki’s requests for production, or
identify any additional documents as responsive to any of Mirkai’s written interrogatories. See
Exhibit 1 and Exhibit 2.
10. In Miraki’s requests for production, Miraki asked Lionhead to produce all
documents that relate to Lionhead’s efforts to re-lease the Premises, and any money Lionhead
received from any replacement tenant. See Request for Production No. 13 (below).
11. The only documents Plaintiff identified in its response to Miraki’s request for
production asking about mitigation of damages documents were marked as LIONHEAD000128-
LIONHEAD000192.
_ —_ — — —_——
REQUEST FOR PRODUCTION NO. 13: Please produce all notes, notices, letters, e-mails,
text messages, memoranda, reports, applications (including permit applications), audio
recordings, video recordings, and other records and documents that constitute or identify any
actions Plaintiff took to re-lease the Premises to a replacement tenant. or otherwise mitigate its
damages as alleged in its current petition on file with the Court.
RESPONSE: Objection. Plaintiff objects to this request in that the phrase “other records”
is overbroad, vague, and ambiguous. There is a duty to narrowly tailor discovery requests
to meet the dispute at hand, and the request is unclear, making it difficult for Plaintiff to
identify the information requested. Further, the request improperly calls for Plaintiff to
marshal its evidence prior to trial and requires a legal analysis as to mitigation of damages,
invasive of the protected thought process of Plaintiff's counsel. The request calls for
disclosure of information that is not calculated to lead to the discovery of admissible
evidence and does not make any fact of consequence more or less probable than it would be
without the evidence. Tex. R. Civ. P. 192.3(a), 192.5; Tex. R. Evid 401, 503. Subject to and
without waiving the foregoing objection(s), See LIONHEAD000128-LIONHEAD000192.
See Exhibit 1, p. 11 of the document.
12. The documents Bates numbered LIONHEAD000128- LIONHEAD000192 contain
emails relating to alleged efforts to re-lease the Premises, but they do not contain any additional
documents that show or relate to the new tenant that currently occupies the Premises, the lease for
that replacement tenant, or the money Plaintiff has received from that replacement tenant.
MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGE3
003
13 Plaintiff's response to Interrogatory No. 2, which asks for “all documents and
information you have in your possession that you believe supports your claim that Dezham
breached the Lease prior to the filing of this lawsuit. Plaintiff responded:
ANSWER: Objection. The request improperly calls for Plaintiff to marshal its evidence |
prior to trial and requires a legal analysis invasive of the protected thought process of
Plaintiff's counsel. The request requires Plaintiff's counsel to make a decision during the
early discovery process as to what may be introduced as evidence, making the request
objectionable on its face. Tex. R. Civ. P. 192.3(a), 192.5; Tex. R. Evid 401, 503. Subject to
and without waiving the foregoing objection(s), Plaintiff responds as follows: See
documents produced to date in this litigation, as well as Plaintiffs live petition and initial
and supplemental disclosures.
See Exhibit 1, p. 3 of the document
14 Plaintiff did not amend or supplement its response to Interrogatory No. 2 prior to
the discovery deadline, or prior to the filing of this pleading.
15 Plaintiff's response to Interrogatory No. 6, asking about any replacement tenant and
any mitigation of damages, Plaintiff identifies a company called, “La Esquina Del DF Taqueria
Inc and after the objections states
Plaintiff's counsel. Tex. R. Civ. P. 192.3(a), 192.5; Tex. 03. Subject to and
R. Evid 401
without waiving the foregoing objection(s). Plaintiff responds as follows Defendant is
referred to the demand emails and letters that were sent on 6/14/19, 6/24/19, 10/23/19.
11/19/19, 11/20/19, 11/22/19, 1/13/20, 3/2/20, 9/12/22, and 9/27/22, along with the related
responses and replies to this correspondence. The Premises was listed on CoStar and
Loopnet, two commercial real estate marketing websites. “For Lease” si s were also
osted onsite.
See Exhibit 1, p. 5 of the document.
16 The response does not identify the specific information requested, or any document
that can be identified by Bates number. Plaintiff has never produced the lease agreement, or any
MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGE 4
004
document that substantiates the date the lease commenced, when rent commenced, or any payment
records from the replacement tenant. Also, Plaintiff did not amend or supplement its response to
Interrogatory No. 6 prior to the discovery deadline, or prior to the filing of this pleading.
17. In response to Interrogatory No. 7, Plaintiff also failed to identify “all payments
you believe the Lease Agreement required Dezham to make to Lionhead, and the amount and date
such payment(s) were made.”:
ANSWER: Objection. The request calls for an improper narrative that seeks complete
factual detail without the benefit of direct questioning or cross-examination. Tex. R. Civ.
P. 192.3(a); Tex. R. Evid 401. Subject to and without waiving the foregoing objection(s),
Plaintiff responds as follows: Dezham failed to pay at least $65,640.89, the past rent due
and additional damages through the end of the lease term, as described in Plaintiff's
supplemental disclosures and in the Plaintiffs Account Summary concurrently produced
herewith. Plaintiff also contends that Dezham (and therefore Miraki) are obligated to pay
Plaintiff's reasonable and necessary attorney’s fees, which amounts will be supplemented
as the case progresses. Plaintiff reserves the right to supplement this response.
See Exhibit 1, p. 5 of the document.
18. The response does not identify the specific information requested, or any document
that can be identified by Bates number, title, or the $65,640.89 number, and Plaintiff did not amend
or supplement its response to Interrogatory No. 7 prior to the discovery deadline, or prior to the
filing of this pleading.
19. Also, Plaintiff has never provided any Rule 194 disclosure or response to any
interrogatory or any document that attempts to explain how any HVAC repairs or replacement was
reasonable or necessary, and Plaintiff has never identified any witness or person with knowledge
of relevant facts, or expertise, who could testify about any installation or repair work that was
performed to any HVAC equipment, or explain how performance of any such work 8-9 months
after the replacement tenant took possession should be attributed to, or charged against, Miraki.
MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGES
005
See Plaintiff's First Amended Required Disclosures, served August 7, 2023. A true and correct
copy of these disclosures is attached hereto as Exhibit 3.
6) The name, address, and telephone number of persons having knowledge of relevant facts.
and a brief statement of each identified person’s connection with the case.
RESPONSE:
Agents, servants, employees, representatives. and custodians of record for:
Lionhead Holdings. LLC
By and through attorneys of record:
Andy Nikolopoulos
Nicole Feragen
Scott Kipnis
Adam Hamilton
Fox Rothschild. LLP
2501 N Harwood Street. Suite 1800
Dallas, Texas 75201
972-991-0889
Fax: 972-404-0516
Plaintiff
20. Not a single individual was named with knowledge of relevant facts relating to
Plaintiff's alleged damages. See Exhibit 3, p. 4 of the document.
21. Plaintiffs trial exhibit list, untimely filed on January 3, 2024 (5 days before trial
instead of 14 as required by the January 13, 2023 Scheduling Order), does not identify any Bates
number range for any of the exhibits identified therein, and Plaintiff did not exchange any actual
or electronic copy of any of the exhibits prior to the time when this brief and motion was filed.
22. Plaintiff's January 3, 2024 trial exhibit list does not identify any document that
could be an invoice for any equipment or fixtures that allegedly were repaired or replaced by
Plaintiff.
23. Plaintiff's Trial Witness List, untimely filed on January 3, 2024 (5 days before trial
instead of 14 as required by the January 13, 2023 Scheduling Order), does not identify any witness
who could testify regarding any equipment or fixtures that allegedly were repaired or replaced by
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006
Plaintiff, or any invoice or costs or payments related thereto. This document is the first time Plaintiff
identified Tom Mantas and Dena Plum as potential witnesses.
24. On April 10, 2024, 5 days before the current trial setting, Plaintiff apparently
realized that it had not previously produced any invoice for the alleged HVAC repairs, and it sent
a non-Bates numbered copy by email, and for the first time identified the Bates number range of
the ‘exhibits’ that were summarily identified in the January 3, 2024 trial exhibit list. Plaintiff had
notice of the Bates numbering issue since Miraki filed his first Motion to Exclude Evidence on
January 4, 2024, but chose not to address the issue until 5 days before the current trial setting; the
prejudice to Miraki in not being able to prepare adequately for trial remains unchanged.
25. As of the date when this brief and motion were filed, Plaintiff had not produced a
single document to substantiate allegations about when the replacement tenant took possession of
the Premises, what were the terms of the lease agreement with the replacement tenant, how much
money that replacement tenant had paid to Plaintiff for leasing the Premises, or why Plaintiff
believes Miraki should pay for charges for HVAC equipment Plaintiff lists on LIONHEAD
000107 as costing $19,485.00 on July 17, 2023 (9 months after the replacement tenant leased the
Premises).
IL.
ARGUMENT
26. Plaintiff should not be allowed to introduce at trial any evidence that was not timely
identified in its responses to written discovery, and Plaintiff should not be able to offer any proof
of any damages against Miraki when Plaintiff failed to identify any representative fact witnesses,
failed to produce responsive documents and information that could show the extent to which
Plaintiff's receipt of money from a replacement tenant has mitigated its alleged damages, and
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failed to identify any witnesses or produce responsive documents and information that could show
any reasonableness, necessity, or costs allegedly incurred for any HVAC equipment.
27. Texas Property Code Sec. 91.006 states, in its entirety:
“Landlord’s Duty to Mitigate Damages.
(a) A landlord has a duty to mitigate damages if a tenant abandons the leased premises in
violation of the lease.
(b) A provision of a lease that purports to waive a right or to exempt a landlord from a
liability or duty under this section is void.”
Tex. Prop. Code § 91.006 (LexisNexis, Lexis Advance through the 2023 Regular
Session; the Ist C.S.; the 2nd C.S.; the 3rd C.S. and the 4th C.S. of the 88th Legislature;
and the November 7, 2023 general election results)
28. The Fifth District Court of Appeals at Dallas has described this burden as follows:
“In their fourth issue, appellants contend that Harrison failed to exercise reasonable care
in mitigating his damages. In Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc.,
948 S.W.2d 293, 299 (Tex. 1997). the Supreme Court [**15] of Texas recognized that a
commercial landlord has a duty to make reasonable efforts to mitigate damages when the
tenant breaches the lease and abandons the property. The rule in Palisades Plaza has
since been codified: "A landlord has a duty to mitigate damages if a tenant abandons the
leased premises in violation of the lease." Tex. Prop. Code Ann. § 91.006(a) (West
2007).5 The landlord's duty to mitigate requires him to use "objectively reasonable
efforts" to re-lease the premises to a tenant "suitable under the circumstances." Palisades
Plaza, 948 S.W.2d at 299. If the landlord fails to use reasonable efforts to mitigate
damages, his recovery from the tenant is barred to the extent that damages reasonably
could have been avoided. /d. the reasonableness of the landlord's efforts to avoid
damages is an issue for the fact finder. See Hunsucker v. Omega Indus., 659 S.W.2d 692,
698 (Tex. App.—Dallas 1983, no writ) ("issues such as reasonableness and foreseeability
are inherently issues for a jury"). The tenant bears the burden of proof to demonstrate that
the landlord has failed to mitigate damages and the amount by which the landlord could
have reduced his damages. Palisades Plaza, 948 S.W.2d at 299.”
White v. Harrison, 390 S.W.3d 666, 675 (Tex. App. 2012).
28 In addition, it has been long standing precedent that, “reletting the premises reduces
the landlord’s recovery.” Dall. Berkshire Partners, Ltd. v. James French Photography, Inc., No.
05-98-01352-CV. 2001 Tex. App. LEXIS 1311, at *28 (Tex. App. Mar. 1, 2001).
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30. Miraki has a right to rely on the written responses to discovery that were served by
Plaintiff during the discovery period, and failures to supplement or amend discovery responses
leads to an automatic exclusion of unproduced responsive evidence.
31. TEX. R. Civ. P. 193.6 states (in part):
(a) Exclusion of evidence and exceptions. A party who fails to make, amend, or
supplement a discovery response in a timely manner may not introduce in evidence the
material or information that was not timely disclosed, or offer the testimony of a witness
(other than a named party) who was not timely identified, unless the court finds that:
(1) there was good cause for the failure to timely make, amend, or supplement the
discovery response; or
(2) the failure to timely make, amend, or supplement the discovery response will
not unfairly surprise or unfairly prejudice the other parties.
(b) Burden of establishing exception. The burden of establishing good cause or the lack
of unfair surprise or unfair prejudice is on the party seeking to introduce the evidence or
call the witness. A finding of good cause or of the lack of unfair surprise or unfair prejudice
must be supported by the record.
32. Plaintiff cannot dispute that it did not disclose any documents other than
LIONHEAD000001- LIONHEAD000216 in its responses to requests for production, and that it
has not supplemented those requests for production.
33. Plaintiff cannot dispute that the fact that the documents it served after the close of
the discovery period on November 9, 2023 were untimely.
34. Plaintiff cannot dispute the fact that it did not produce any documents showing any
alleged costs incurred for any repairs or replacement to HVAC units, until April 10, 2024, almost
6 months after the discovery period closed.
35. Nothing in the documents produced by Lionhead (either at the close of the
discovery period, or as of the date when this brief was filed) included any lease agreement for the
replacement tenant, the identify of the replacement tenant that Plaintiff alleged leased the Premises
on November 15, 2022, the date the replacement tenant started occupying the Premises, the money
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received by Lionhead from the replacement tenant that currently occupies the Premises, and the
documents that would substantiate those facts, such as any records of payments from the
replacement tenant, or costs incurred that could be attributable to Miraki in any way.
36. The January 13, 2023 Scheduling Order required Plaintiff to produce, “copies of
any exhibits not previously produced in discovery,” so Lionhead’s untimely production of the
“HVAC Invoice,” on April 10, 2024, violated both Plaintiff's obligations under TEX. R. CIV. P.
193.3, and also the January 13, 2023 Scheduling Order.
37. Lionhead has also failed to produce any documents or other evidence that could
substantiate any claim that any inspection was performed on the equipment allegedly damaged or
not in good working condition, or other evidence from any expert witness that could support a
finding of fact that any alleged repairs to HVAC or other equipment were reasonable or necessary.
38. Lionhead has also failed to produce any invoices or documents or other evidence
that could substantiate any claim that Plaintiff paid any money for equipment allegedly damaged
or not in good working condition, or other evidence from any expert witness that could support a
finding of fact that any alleged costs were reasonable or necessary.
39. Pursuant to TEX. R. Civ. P. 215.2(b):
(b) Sanctions by court in which action is pending. If a party or an officer, director, or
managing agent of a party or a person designated under Rules 199.2(b)(1) or 200.1(b) to
testify on behalf of a party fails to comply with proper discovery requests or to obey an
order to provide or permit discovery, including an order made under Rules 204 or 215.1,
the court in which the action is pending may, after notice and hearing, make such orders in
regard to the failure as are just, and among others the following:
MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGE 10
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(3) an order that the matters regarding which the order was made or any other
designated facts shall be taken to be established for the purposes of the action in
accordance with the claim of the party obtaining the order;
(4) an order refusing to allow the disobedient party to support or oppose designated
claims or defenses, or prohibiting him from introducing designated matters in
evidence;
(5) an order striking out pleadings or parts thereof, or staying further proceedings until
the order is obeyed, or dismissing with or without prejudice the action or
proceedings or any part thereof, or rendering a judgment by default against the
disobedient party;
(8) In lieu of any of the foregoing orders or in addition thereto, the court shall require
the party failing to obey the order or the attorney advising him, or both, to pay, at
such time as ordered by the court, the reasonable expenses, including attorney fees,
caused by the failure, unless the court finds that the failure was substantially
justified or that other circumstances make an award of expenses unjust. Such an
order shall be subject to review on appeal from the final judgment.
See TEX. R. Civ. P. 215.2(b) (emphasis added).
40. By only producing documents and information that could potentially support its
bald argument that it made a reasonable effort to find a replacement tenant, and withholding
documents and information that would show the results of any such efforts, Lionhead has
attempted improperly to distort reality, and eliminate Miraki’s ability to offer evidence to support
his affirmative defenses based on Lionhead’s failure to mitigate damages.
41. By failing or refusing to identify witnesses, or produce documents or other evidence
that could show that any repairs were reasonable or necessary, or that any costs to perform any
such repairs were reasonable and necessary, Lionhead has attempted improperly to eliminate
Miraki’s ability to evaluate the merits of those claims during the discovery period.
42. Because Lionhead has failed to identify witnesses, or produce documents that could
substantiate any allegations about the replacement tenant identified in Lionhead’s response to
Interrogatory No. 6, including the lease agreement, and payment records, which would be
MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGE 11
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necessary to establish any specific amount of damages that possibly could be attributed to either
Defendant, Lionhead has obstructed, and prohibited, Miraki and the Court from being able to
obtain the evidence needed to confirm any specific amount of actual damages that could be
awarded at trial. As such, Lionhead should be prohibited from offering any evidence at trial that
purports to prove that any rent payments or other charges or costs allegedly not paid by either
Defendant.
43. Because Lionhead has failed to identify any fact or expert witness it designated to
testify regarding any reasonableness or necessity of any HVAC or other repair or replacement
work, Lionhead should be prohibited from offering any evidence at trial that purports to prove that
any repairs or replacement of any equipment was reasonable or necessary.
44. Because Lionhead has also failed to identify any fact or expert witness it designated
to testify regarding any costs of any HVAC or other repair or replacement work, Lionhead should
be prohibited from offering any evidence at trial that purports to prove that any alleged costs were
reasonable or necessary.
45. If the Court does not appropriately sanction Plaintiff Lionhead, then it will be
rewarding Plaintiff for withholding highly relevant information and documents that were
responsive to written discovery requests that undeniably prejudiced Miraki in his ability to
determine and assess any evidentiary basis of Plaintiffs claims, and adequately prepare for trial.
46. How is it possible for the Court to find that any specific amount of money is
reasonable or necessary to compensate Plaintiff for any breach of any obligation by either
Defendant if the Court is unaware of the specific amount of money Plaintiff has received from the
replacement tenant who now occupies the Premises?
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47. How is it possible for the Court to find that any amount of money is reasonable or
necessary for any repairs to equipment when there is no documentation showing what specific
repairs or replacements were made, what specific equipment was repaired or replaced, or whether
any amounts were actually paid by Plaintiff?
48. How would it be possible for Miraki to confirm or disprove the merits of Plaintiffs
claims during the discovery period if Plaintiff failed to produce, or identify, relevant evidence
during the discovery period?
49. How is it possible for the Court to permit any witness to testify at trial regarding
any of the breaches alleged by Plaintiff Lionhead, or any of the alleged damages, when Plaintiff
failed to identify anyone in its Rule 194 required disclosures with knowledge of relevant facts on
those topics, or identify the specific breaches in response to specific interrogatories?
50. Miraki has been improperly brought into this lawsuit based on a forged signature,
and effectively has been denied his due process rights by Plaintiff’s failure to respond to written
discovery in the manner required by the Texas Rules of Civil Procedure and the Court’s January
13, 2023 Scheduling Order.
oir At this point, it would be well within the Court’s discretion to dismiss all claims
against Miraki due to Plaintiffs failures to abide its discovery obligations.
Hil.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant Miraki respectfully requests and
prays that the Court consider the merits of this brief and motion for discovery sanctions, the
evidence attached thereto, and issue an order that imposes discovery sanctions on Plaintiff
Lionhead for its failure to comply with the obligations to timely respond to and supplement the
proper discovery requests identified herein, and failure to obey the deadlines in the Court’s January
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13, 2023 Scheduling Order, including the failures to timely produce responsive documents in a
timely manner, and failures to timely identify witnesses who could testify to facts necessary to
substantiate key facts about Plaintiff's alleged damages. Specifically, Defendant Miraki
respectfully requests the Court issue the following Orders:
1) Due to Dezham’s failure to exchange any exhibit list or exhibit documents not
previously produced during discovery on or before the December 26, 2023 deadline
found in the January 13, 2023 Scheduling Order, Dezham is prohibited from
introducing into evidence at trial any documents as evidence.
2) Due to Lionhead’s failure to exchange any exhibit list or exhibit documents not
previously produced during discovery on or before the December 26, 2023 deadline
found in the January 13, 2023 Scheduling Order, Lionhead is prohibited from
introducing into evidence at trial any documents as evidence.
3) Due to Lionhead’s failure to identify, specify, or exchange copies of the documents
that were generally named in Lionhead’s untimely filed Exhibit List (filed on
January 3, 2024) as PX2, PX6, PX8, PX9, PX10, PX11, PX12, and PX 13,
Lionhead is prohibited from introducing into evidence at trial the documents it
generally named as PX2, PX6, PX8, PX9, PX10, PX11, PX12, and PX 13.
4) Due to Lionhead’s failure to identify in its mandatory disclosures (TEX. R. CIv. P.
194) any individual with knowledge of relevant facts on behalf of Lionhead,
Lionhead is prohibited from presenting any testimony or document evidence during
trial from anyone purportedly acting as a representative of Lionhead.
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014
5) Due to Lionhead’s failure to identify any specific breach of contract by Defendant
Dezham in response to Interrogatory No. 2, Lionhead is prohibited from presenting
any testimony or document evidence that any breach by Dezham occurred.
6) Due to Lionhead’s failure to identify any specific breach of contract or guaranty by
Defendant Miraki in response to Interrogatory No. 9, Lionhead is prohibited from
presenting any testimony or document evidence that any breach by Miraki
occurred.
7) Due to Lionhead’s failure to identify any consideration or benefit allegedly received
by Miraki in connection with the lease agreement or alleged guaranty agreement
made the basis of Lionhead’s claims against Miraki, in response to Request for
Production Nos. 14 and 15, and Interrogatory Nos. 4 and 5, Lionhead is prohibited
from presenting any testimony or document evidence that any consideration was
received by Miraki.
8) Due to Lionhead’s failure to produce documents that could substantiate any
allegations about the replacement tenant identified in Lionhead’s response to
Interrogatory No. 6, and the disclosures required by TEX. R. CIv. P. 194, including
the lease agreement, and payment records, which would be necessary to establish
any specific amount of damages that possibly could be attributed to either
Defendant, Lionhead has obstructed, and prohibited, Miraki and the Court from
being able to obtain the evidence needed to confirm any specific amount of actual
damages that could be awarded at trial. Accordingly, Lionhead is prohibited from
presenting any testimony or document evidence at trial that purports to prove that
Lionhead incurred any actual damages as a result of any act or omission by Miraki.
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015
9) Due to Lionhead’s failure to identify in a timely manner any fact or expert witness
it designated to testify regarding any reasonableness or necessity of any HVAC or
other repair or replacement work, Lionhead is prohibited from offering any
evidence at trial that purports to prove that any repairs or replacement of any
equipment was reasonable or necessary.
10) Due to Lionhead’s failure to identify in a timely manner any fact or expert witness
it designated to testify regarding any costs of any HVAC or other repair or
replacement work, Lionhead is prohibited from presenting any testimony or
document evidence at trial that purports to prove that any alleged costs were
reasonable or necessary.
Miraki further requests that the Court grant any further relief, at law or in equity, to which
Miraki may be justly entitled.
Respectfully Submitted,
MORALES WALKER PLLC
Sf EricD. Walker
Eric D. WALKER
State Bar No. 24047056
6060 N. Central Expy., Suite 500
Dallas, Texas 75206
972-948-3646 (Telephone)
walker@mwtrialfirm.com
Attorneys for Sorab Miraki
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CERTIFICATE OF SERVICE
I hereby certify that on April 15, 2024, all parties have been served with the foregoing
document in accordance with the Texas Rules of Civil Procedure, as follows:
Via Electronic Service: anikolopoulos@foxrothschild.com
Andy Nikolopoulos
Fox ROTHSCHILD, LLP
2501 N. Harwood St., Suite 1800
Dallas, Texas 75201
Telephone: 972-991-0889
Facsimile: 972-404-0516
Attorneys for Plaintiff
Via Electronic Service: wydelaw@gmail.com
Lauren Stone
WYDE & STONE
10100 N. Central Expy., Suite 230
Dallas, Texas 75231
Telephone: 214-521-9100
Attorneys for Hossain Dezham Defendants
Sf EricD. Walker
ErIc D. WALKER
MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGE 17
017
Exhibit 1
CAUSE NO. DC-22-15163
LIONHEAD HOLDINGS LLC, IN THE DISTRICT COURT
Plaintiff,
Vv. 116™ JUDICIAL DISTRICT
HOSSAIN MOHAMMAD DEZHAM
d/b/a BURGER BUENO; HOSSAIN
MOHAMMAD DEZHAM, Individually;
and SORAB MIRAKI
Defendants. DALLAS COUNTY, TEXAS
PLAINTIFF’S OBJECTIONS AND RESPONSES TO DEFENDANT
SORAB MIRAKIS FIRST WRITTEN DISCOVERY
TO. Defendant Sorab Miraki, by and through his attorneys of record, MORALES WALKER
PLLC, Eric D. Walker, 6060 N. Central Expy., Suite 500, Dallas, Texas 75206,
walker@mwtrialfirm.com.
TO. Defendant Hossain Mohammad Dezham, Individually and d/b/a Burger Bueno, by and
through his attorneys of record, LONERGAN LAW FIRM PLLC, Gaylene Rogers Lonergan,
12801 N Central Expressway, Suite 150, Dallas, Texas 75243,
grogers@lonerganlaw.com,
Pursuant to the Texas Rules of Civil Procedure, Plaintiff Lionhead Holdings LLC
(“Plaintiff’ or “Lionhead”) serves its Objections and Responses to Defendant Sorab Miraki’s
First Written Discovery.
L
GENERAL OBJECTIONS
1 Plaintiff objects to Defendant’s definitions and instructions included in
Defendant’s First Written Discovery Requests to the extent that they purport to impose
obligations and requirements on Plaintiff in addition to those imposed by the Texas Rules of
Civil Procedure regarding the discovery of information. Plaintiff further objects to the extent
that they impose duties beyond those required by the Texas Rules of Civil Procedure, and the
PLAINTIFF’S OBJECTIONS AND RESPONSES TO SORAB MIRAKI’S FIRST WRITTEN DISCOVERY Page |
148063011.1
018
requests containing same are unduly burdensome, vague, overly broad, unclear, ambiguous, and
fail to identify with reasonable particularity the category of documents sought.
2. Plaintiff's answers are based on its present knowledge after reasonable
investigation and based upon its interpretation and construction of the requests as limited by the
objections contained herein. Plaintiff reserves the right to redact any portions of otherwise
responsive and non-privileged documents that contain irrelevant nonresponsive or responsive
privileged information.
3 Plaintiff will supplement its answers in accordance with the Texas Rules of Civil
Procedure and/or the then current scheduling order of the Court.
4 Plaintiff objects to the disclosure to Defendant of any confidential or proprietary
information or documents not relevant to the subject matter of this litigation. Confidential or
proprietary information relevant to the subject matter of this litigation will be provided, subject
to any general or specific objections, upon the entry of an appropriate Agreed Confidentiality
Order; but, until such time as the Agreed Confidentiality Order becomes effective, Plaintiff
objects to the disclosure to Defendant of any confidential or proprietary information or
documents. Subject to, and without waiving the foregoing objections, Plaintiff will respond to
Defendant’s First Written Discovery Requests only in accordance with the Texas Rules of Civil
Procedure.
5 Plaintiff in all instances intends to preserve and does claim the attorney-client and
work-product privileges when applicable. No disclosure will be made that is subject to a claim
of privilege or work product. Subject to, and without waiving the foregoing objections, Plaintiff
will respond to Defendant’s First Written Discovery Requests only in accordance with the Texas
Rules of Civil Procedure.
PLAINTIFF’S OBJECTIONS AND RESPONSES TO SORAB MIRAKI’S FIRST WRITTEN DISCOVERY Page 2
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6. Plaintiff objects to any requests for electronically stored information (“ESI”) to
the extent that same is not reasonably accessible or to the extent that production of same would
result in undue burden or cost. Plaintiff also objects to the production of any metadata, as
discovery of such data is not reasonably calculated to lead to the discovery of admissible
evidence, nor is it relevant to prove any claim or defense. Plaintiff further objects to the
production of any ESI to the extent that any such request requires the release of confidential or
personal electronic information.
IL.
SPECIFIC OBJECTIONS AND ANSWERS TO INTERROGATORIES
INTERROGATORY NO. 1: Identify each person who provided factual information that was
used in connection with any of your responses to the interrogatories served by Miraki in this
lawsuit, including the name, contact information, and relationship to any of the parties to this
lawsuit.
ANSWER:
Tom Mantas, Owner
Lionhead Holdings LLC
By and through counsel of record:
Fox Rothschild LLP
Andy Nikolopoulos
Nicole Feragen
214-231-5776
INTERROGATORY NO 2: Identify all documents and information you have in your
possession that you believe supports your claim that Dezham breached the Lease Agreement
prior to the filing of this lawsuit.
ANSWER: Objection. The request improperly calls for Plaintiff to marshal its evidence
prior to trial and requires a legal analysis invasive of the protected thought process of
Plaintiff's counsel. The request requires Plaintiff's counsel to make a decision during the
early discovery process as to what may be introduced as evidence, making the request
objectionable on its face. Tex. R. Civ. P. 192.3(a), 192.5; Tex. R. Evid 401, 503. Subject to
and without waiving the foregoing objection(s), Plaintiff responds as follows: See
documents produced to date in this litigation, as well as Plaintiff’s live petition and initial
and supplemental disclosures.
PLAINTIFFS OBJECTIONS AND RESPONSES TO SORAB MIRAKI’S FIRST WRITTEN DISCOVERY Page 3
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020
INTERROGATORY NO 3: If you contend that Miraki was a “tenant” according to the terms
of the Lease Agreement signed by Dezham on June 27, 2018, please identify any and all things
you contend Miraki received as consideration.
ANSWER: Objection. This request assumes facts not yet established, misstates the
evidence, and calls for a legal conclusion. Plaintiff responds as follows: Miraki is a
Personal Guarantor under the Lease Agreement.
INTERROGATORY NO. 4: If you contend that Miraki received any payment, compensation,
assignment of rights, or other thing you contend amounts to consideration, in exchange for
signing the Guaranty of Lease attached to the Lease Agreement signed by Dezham on June 27,
2018, please identify any and all things you contend Miraki received as consideration.
ANSWER: Objection. The request calls for an improper narrative that seeks complete
factual detail without the benefit of direct questioning or cross-examination. Further, the
request improperly calls for Plaintiff to marshal its evidence prior to trial and requires a
legal analysis as to “consideration,” invasive of the protected thought process of Plaintiff's
counsel, Tex. R. Civ. P. 192.3(a), 192.5; Tex. R. Evid 401, 503. Subject to and without
waiving the foregoing objection(s), Plaintiff responds as follows: Plaintiff refers to
LIONHEAD00030, Exhibit A2 Guaranty of Lease, which describes the mutual receipt and
adequacy of consideration and substantial benefit received by Guarantor from Landlord.
INTERROGATORY NO. 5: If you contend that Miraki received any payment, compensation,
assignment of rights, or other thing you contend amounts to consideration, in exchange for
signing the Guaranty of Lease attached to the Lease Agreement signed by Dezham on June 27,
2018, please explain how you believe that alleged consideration provided anything of value to
Miraki.
ANSWER: Objection. The request calls for an improper narrative that seeks complete
factual detail without the benefit of direct questioning or cross-examination. Further, the
request improperly calls for Plaintiff to marshal its evidence prior to trial and requires a
legal analysis as to “consideration,” invasive of the protected thought process of Plaintiff's
counsel. Tex. R. Civ. P. 192.3(a), 192.5; Tex. R. Evid 401, 503. Subject to and without
waiving the foregoing objection(s), Plaintiff responds as follows: Plaintiff refers to
LIONHEAD00030, Exhibit A2 Guaranty of Lease, which describes the mutual receipt and
adequacy of consideration and substantial benefit received by Guarantor from Landlord.
INTERROGATORY NO. 6: If you contend that Lionhead performed any action that could be
considered as mitigating its damages, including but not limited to sending any notice to Miraki
that Dezham had failed to perform his payment obligations, or that Lionhead took any action to
find a replacement tenant, please identify any and all things you contend Lionhead performed to
mitigate its damages.
ANSWER: Objection. The request calls for an improper narrative that seeks complete
factual detail without the benefit of direct questioning or cross-examination. Further, the
PLAINTIFF’S OBJECTIONS AND RESPONSES TO SORAB MIRAKI’S FIRST WRITTEN DISCOVERY Page 4
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request improperly calls for Plaintiff to marshal its evidence prior to tr
Preview
FILED 4/15/2024 10:27 PM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Rosa Delacerda DEPUTY, CAUSE NO. DC-22-15163 LIONHEAD HOLDINGS LLC, IN THE DISTRICT COURT Plaintiff, Vv. 116™ JUDICIAL DISTRICT HOSSAIN MOHAMMAD DEZHAM, d/b/a BURGER BUENO; HOSSAIN MOHAMMAD DEZHAM, Individually; and SORAB MIRAKI, Defendants. DALLAS COUNTY, TEXAS MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS COME NOW, Defendant Sorab Miraki (“Miraki”), and files this trial brief on the failure by Plaintiff Lionhead Holdings, LLC (“Lionhead”) to mitigate its damages by taking reasonable actions to find a replacement tenant, or provide documents in response to written discovery requests that show how much money Lionhead received from the replacement tenant that currently occupies the commercial space made the basis of its claims in this lawsuit (the “Premises”), but was not disclosed in response to written discovery requests served on June 26, 2023. By improperly withholding responsive documents and information, Plaintiff completely prevented Miraki from having an opportunity to show the extent to which Plaintiff mitigated its damages, and any finding of fact about Plaintiff's alleged damages would be irredeemably flawed. This supplemental motion to exclude incorporates, and supplements, Miraki’s Motion to Exclude Evidence, filed in to the records of this Court on January 4, 2024. I. BACKGROUND 1 This case is set for a non-jury trial on April 15, 2024. 2. In his original answer filed January 26, 2023, Miraki requested a jury trial. MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGE 1 001 3 The Court issued its scheduling order for this case on January 13, 2023, which set an Initial Trial Setting on January 8, 2024. 4 The January 13, 2023 Scheduling Order also placed this case on a Level 2 Discovery Control Plan. 5 The January 13, 2023 Scheduling Order required the parties to exchange exhibit lists and any exhibit documents not previously produced during discovery on or before December 26, 2023. Lionhead did not serve or file any exhibit list until January 3, 2024, and Dezham never served or filed one at all. 6. Because Defendant Hossain Dezham filed his answer on January 10, 2023, Plaintiff's initial disclosures were due on February 9, 2023, and the discovery period was then set to close 9 months later — on November 9, 2023. See TEX. R. Civ. P. 190.3(b)(1)(B) and 194.2(a). 7. On June 26, 2023, Miraki served Lionhead with Miraki’s First Written Discovery to Plaintiff Lionhead, which included interrogatories, requests for production, and requests for admission. In response, Lionhead served responses on August 7, 2023 (response date agreed to by Miraki and Lionhead): Plaintiff's Objections and Responses to Sorab Miraki’s First Written Discovery. A true and correct copy of that document is attached hereto as Exhibit 1. Lionhead served a brief supplemental response to Interrogatory No. 13 on November 13, 2023. A true and correct copy of that document is attached hereto as Exhibit 2. 8 The only documents Plaintiff identified in its responses to Miraki’s requests for production were marked as LIONHEAD000106- LIONHEAD000216. REQUEST FOR PRODUCTION NO. 1: Please produce all documents you identified in any response to Miraki’s interrogatories served in this lawsuit. RESPONSE: See LIONHEAD000001-LIONHEAD000216. See Exhibit 1, p. 7 of the document. MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGE 2 002 9 Since serving its initial responses to Miraki’s requests for production on August 7, 2023, Plaintiff did not serve any supplemental responses to Miraki’s requests for production, or identify any additional documents as responsive to any of Mirkai’s written interrogatories. See Exhibit 1 and Exhibit 2. 10. In Miraki’s requests for production, Miraki asked Lionhead to produce all documents that relate to Lionhead’s efforts to re-lease the Premises, and any money Lionhead received from any replacement tenant. See Request for Production No. 13 (below). 11. The only documents Plaintiff identified in its response to Miraki’s request for production asking about mitigation of damages documents were marked as LIONHEAD000128- LIONHEAD000192. _ —_ — — —_—— REQUEST FOR PRODUCTION NO. 13: Please produce all notes, notices, letters, e-mails, text messages, memoranda, reports, applications (including permit applications), audio recordings, video recordings, and other records and documents that constitute or identify any actions Plaintiff took to re-lease the Premises to a replacement tenant. or otherwise mitigate its damages as alleged in its current petition on file with the Court. RESPONSE: Objection. Plaintiff objects to this request in that the phrase “other records” is overbroad, vague, and ambiguous. There is a duty to narrowly tailor discovery requests to meet the dispute at hand, and the request is unclear, making it difficult for Plaintiff to identify the information requested. Further, the request improperly calls for Plaintiff to marshal its evidence prior to trial and requires a legal analysis as to mitigation of damages, invasive of the protected thought process of Plaintiff's counsel. The request calls for disclosure of information that is not calculated to lead to the discovery of admissible evidence and does not make any fact of consequence more or less probable than it would be without the evidence. Tex. R. Civ. P. 192.3(a), 192.5; Tex. R. Evid 401, 503. Subject to and without waiving the foregoing objection(s), See LIONHEAD000128-LIONHEAD000192. See Exhibit 1, p. 11 of the document. 12. The documents Bates numbered LIONHEAD000128- LIONHEAD000192 contain emails relating to alleged efforts to re-lease the Premises, but they do not contain any additional documents that show or relate to the new tenant that currently occupies the Premises, the lease for that replacement tenant, or the money Plaintiff has received from that replacement tenant. MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGE3 003 13 Plaintiff's response to Interrogatory No. 2, which asks for “all documents and information you have in your possession that you believe supports your claim that Dezham breached the Lease prior to the filing of this lawsuit. Plaintiff responded: ANSWER: Objection. The request improperly calls for Plaintiff to marshal its evidence | prior to trial and requires a legal analysis invasive of the protected thought process of Plaintiff's counsel. The request requires Plaintiff's counsel to make a decision during the early discovery process as to what may be introduced as evidence, making the request objectionable on its face. Tex. R. Civ. P. 192.3(a), 192.5; Tex. R. Evid 401, 503. Subject to and without waiving the foregoing objection(s), Plaintiff responds as follows: See documents produced to date in this litigation, as well as Plaintiffs live petition and initial and supplemental disclosures. See Exhibit 1, p. 3 of the document 14 Plaintiff did not amend or supplement its response to Interrogatory No. 2 prior to the discovery deadline, or prior to the filing of this pleading. 15 Plaintiff's response to Interrogatory No. 6, asking about any replacement tenant and any mitigation of damages, Plaintiff identifies a company called, “La Esquina Del DF Taqueria Inc and after the objections states Plaintiff's counsel. Tex. R. Civ. P. 192.3(a), 192.5; Tex. 03. Subject to and R. Evid 401 without waiving the foregoing objection(s). Plaintiff responds as follows Defendant is referred to the demand emails and letters that were sent on 6/14/19, 6/24/19, 10/23/19. 11/19/19, 11/20/19, 11/22/19, 1/13/20, 3/2/20, 9/12/22, and 9/27/22, along with the related responses and replies to this correspondence. The Premises was listed on CoStar and Loopnet, two commercial real estate marketing websites. “For Lease” si s were also osted onsite. See Exhibit 1, p. 5 of the document. 16 The response does not identify the specific information requested, or any document that can be identified by Bates number. Plaintiff has never produced the lease agreement, or any MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGE 4 004 document that substantiates the date the lease commenced, when rent commenced, or any payment records from the replacement tenant. Also, Plaintiff did not amend or supplement its response to Interrogatory No. 6 prior to the discovery deadline, or prior to the filing of this pleading. 17. In response to Interrogatory No. 7, Plaintiff also failed to identify “all payments you believe the Lease Agreement required Dezham to make to Lionhead, and the amount and date such payment(s) were made.”: ANSWER: Objection. The request calls for an improper narrative that seeks complete factual detail without the benefit of direct questioning or cross-examination. Tex. R. Civ. P. 192.3(a); Tex. R. Evid 401. Subject to and without waiving the foregoing objection(s), Plaintiff responds as follows: Dezham failed to pay at least $65,640.89, the past rent due and additional damages through the end of the lease term, as described in Plaintiff's supplemental disclosures and in the Plaintiffs Account Summary concurrently produced herewith. Plaintiff also contends that Dezham (and therefore Miraki) are obligated to pay Plaintiff's reasonable and necessary attorney’s fees, which amounts will be supplemented as the case progresses. Plaintiff reserves the right to supplement this response. See Exhibit 1, p. 5 of the document. 18. The response does not identify the specific information requested, or any document that can be identified by Bates number, title, or the $65,640.89 number, and Plaintiff did not amend or supplement its response to Interrogatory No. 7 prior to the discovery deadline, or prior to the filing of this pleading. 19. Also, Plaintiff has never provided any Rule 194 disclosure or response to any interrogatory or any document that attempts to explain how any HVAC repairs or replacement was reasonable or necessary, and Plaintiff has never identified any witness or person with knowledge of relevant facts, or expertise, who could testify about any installation or repair work that was performed to any HVAC equipment, or explain how performance of any such work 8-9 months after the replacement tenant took possession should be attributed to, or charged against, Miraki. MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGES 005 See Plaintiff's First Amended Required Disclosures, served August 7, 2023. A true and correct copy of these disclosures is attached hereto as Exhibit 3. 6) The name, address, and telephone number of persons having knowledge of relevant facts. and a brief statement of each identified person’s connection with the case. RESPONSE: Agents, servants, employees, representatives. and custodians of record for: Lionhead Holdings. LLC By and through attorneys of record: Andy Nikolopoulos Nicole Feragen Scott Kipnis Adam Hamilton Fox Rothschild. LLP 2501 N Harwood Street. Suite 1800 Dallas, Texas 75201 972-991-0889 Fax: 972-404-0516 Plaintiff 20. Not a single individual was named with knowledge of relevant facts relating to Plaintiff's alleged damages. See Exhibit 3, p. 4 of the document. 21. Plaintiffs trial exhibit list, untimely filed on January 3, 2024 (5 days before trial instead of 14 as required by the January 13, 2023 Scheduling Order), does not identify any Bates number range for any of the exhibits identified therein, and Plaintiff did not exchange any actual or electronic copy of any of the exhibits prior to the time when this brief and motion was filed. 22. Plaintiff's January 3, 2024 trial exhibit list does not identify any document that could be an invoice for any equipment or fixtures that allegedly were repaired or replaced by Plaintiff. 23. Plaintiff's Trial Witness List, untimely filed on January 3, 2024 (5 days before trial instead of 14 as required by the January 13, 2023 Scheduling Order), does not identify any witness who could testify regarding any equipment or fixtures that allegedly were repaired or replaced by MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGE 6 006 Plaintiff, or any invoice or costs or payments related thereto. This document is the first time Plaintiff identified Tom Mantas and Dena Plum as potential witnesses. 24. On April 10, 2024, 5 days before the current trial setting, Plaintiff apparently realized that it had not previously produced any invoice for the alleged HVAC repairs, and it sent a non-Bates numbered copy by email, and for the first time identified the Bates number range of the ‘exhibits’ that were summarily identified in the January 3, 2024 trial exhibit list. Plaintiff had notice of the Bates numbering issue since Miraki filed his first Motion to Exclude Evidence on January 4, 2024, but chose not to address the issue until 5 days before the current trial setting; the prejudice to Miraki in not being able to prepare adequately for trial remains unchanged. 25. As of the date when this brief and motion were filed, Plaintiff had not produced a single document to substantiate allegations about when the replacement tenant took possession of the Premises, what were the terms of the lease agreement with the replacement tenant, how much money that replacement tenant had paid to Plaintiff for leasing the Premises, or why Plaintiff believes Miraki should pay for charges for HVAC equipment Plaintiff lists on LIONHEAD 000107 as costing $19,485.00 on July 17, 2023 (9 months after the replacement tenant leased the Premises). IL. ARGUMENT 26. Plaintiff should not be allowed to introduce at trial any evidence that was not timely identified in its responses to written discovery, and Plaintiff should not be able to offer any proof of any damages against Miraki when Plaintiff failed to identify any representative fact witnesses, failed to produce responsive documents and information that could show the extent to which Plaintiff's receipt of money from a replacement tenant has mitigated its alleged damages, and MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGE 7 007 failed to identify any witnesses or produce responsive documents and information that could show any reasonableness, necessity, or costs allegedly incurred for any HVAC equipment. 27. Texas Property Code Sec. 91.006 states, in its entirety: “Landlord’s Duty to Mitigate Damages. (a) A landlord has a duty to mitigate damages if a tenant abandons the leased premises in violation of the lease. (b) A provision of a lease that purports to waive a right or to exempt a landlord from a liability or duty under this section is void.” Tex. Prop. Code § 91.006 (LexisNexis, Lexis Advance through the 2023 Regular Session; the Ist C.S.; the 2nd C.S.; the 3rd C.S. and the 4th C.S. of the 88th Legislature; and the November 7, 2023 general election results) 28. The Fifth District Court of Appeals at Dallas has described this burden as follows: “In their fourth issue, appellants contend that Harrison failed to exercise reasonable care in mitigating his damages. In Austin Hill Country Realty, Inc. v. Palisades Plaza, Inc., 948 S.W.2d 293, 299 (Tex. 1997). the Supreme Court [**15] of Texas recognized that a commercial landlord has a duty to make reasonable efforts to mitigate damages when the tenant breaches the lease and abandons the property. The rule in Palisades Plaza has since been codified: "A landlord has a duty to mitigate damages if a tenant abandons the leased premises in violation of the lease." Tex. Prop. Code Ann. § 91.006(a) (West 2007).5 The landlord's duty to mitigate requires him to use "objectively reasonable efforts" to re-lease the premises to a tenant "suitable under the circumstances." Palisades Plaza, 948 S.W.2d at 299. If the landlord fails to use reasonable efforts to mitigate damages, his recovery from the tenant is barred to the extent that damages reasonably could have been avoided. /d. the reasonableness of the landlord's efforts to avoid damages is an issue for the fact finder. See Hunsucker v. Omega Indus., 659 S.W.2d 692, 698 (Tex. App.—Dallas 1983, no writ) ("issues such as reasonableness and foreseeability are inherently issues for a jury"). The tenant bears the burden of proof to demonstrate that the landlord has failed to mitigate damages and the amount by which the landlord could have reduced his damages. Palisades Plaza, 948 S.W.2d at 299.” White v. Harrison, 390 S.W.3d 666, 675 (Tex. App. 2012). 28 In addition, it has been long standing precedent that, “reletting the premises reduces the landlord’s recovery.” Dall. Berkshire Partners, Ltd. v. James French Photography, Inc., No. 05-98-01352-CV. 2001 Tex. App. LEXIS 1311, at *28 (Tex. App. Mar. 1, 2001). MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGE 8 008 30. Miraki has a right to rely on the written responses to discovery that were served by Plaintiff during the discovery period, and failures to supplement or amend discovery responses leads to an automatic exclusion of unproduced responsive evidence. 31. TEX. R. Civ. P. 193.6 states (in part): (a) Exclusion of evidence and exceptions. A party who fails to make, amend, or supplement a discovery response in a timely manner may not introduce in evidence the material or information that was not timely disclosed, or offer the testimony of a witness (other than a named party) who was not timely identified, unless the court finds that: (1) there was good cause for the failure to timely make, amend, or supplement the discovery response; or (2) the failure to timely make, amend, or supplement the discovery response will not unfairly surprise or unfairly prejudice the other parties. (b) Burden of establishing exception. The burden of establishing good cause or the lack of unfair surprise or unfair prejudice is on the party seeking to introduce the evidence or call the witness. A finding of good cause or of the lack of unfair surprise or unfair prejudice must be supported by the record. 32. Plaintiff cannot dispute that it did not disclose any documents other than LIONHEAD000001- LIONHEAD000216 in its responses to requests for production, and that it has not supplemented those requests for production. 33. Plaintiff cannot dispute that the fact that the documents it served after the close of the discovery period on November 9, 2023 were untimely. 34. Plaintiff cannot dispute the fact that it did not produce any documents showing any alleged costs incurred for any repairs or replacement to HVAC units, until April 10, 2024, almost 6 months after the discovery period closed. 35. Nothing in the documents produced by Lionhead (either at the close of the discovery period, or as of the date when this brief was filed) included any lease agreement for the replacement tenant, the identify of the replacement tenant that Plaintiff alleged leased the Premises on November 15, 2022, the date the replacement tenant started occupying the Premises, the money MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGE9 009 received by Lionhead from the replacement tenant that currently occupies the Premises, and the documents that would substantiate those facts, such as any records of payments from the replacement tenant, or costs incurred that could be attributable to Miraki in any way. 36. The January 13, 2023 Scheduling Order required Plaintiff to produce, “copies of any exhibits not previously produced in discovery,” so Lionhead’s untimely production of the “HVAC Invoice,” on April 10, 2024, violated both Plaintiff's obligations under TEX. R. CIV. P. 193.3, and also the January 13, 2023 Scheduling Order. 37. Lionhead has also failed to produce any documents or other evidence that could substantiate any claim that any inspection was performed on the equipment allegedly damaged or not in good working condition, or other evidence from any expert witness that could support a finding of fact that any alleged repairs to HVAC or other equipment were reasonable or necessary. 38. Lionhead has also failed to produce any invoices or documents or other evidence that could substantiate any claim that Plaintiff paid any money for equipment allegedly damaged or not in good working condition, or other evidence from any expert witness that could support a finding of fact that any alleged costs were reasonable or necessary. 39. Pursuant to TEX. R. Civ. P. 215.2(b): (b) Sanctions by court in which action is pending. If a party or an officer, director, or managing agent of a party or a person designated under Rules 199.2(b)(1) or 200.1(b) to testify on behalf of a party fails to comply with proper discovery requests or to obey an order to provide or permit discovery, including an order made under Rules 204 or 215.1, the court in which the action is pending may, after notice and hearing, make such orders in regard to the failure as are just, and among others the following: MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGE 10 010 (3) an order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order; (4) an order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence; (5) an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing with or without prejudice the action or proceedings or any part thereof, or rendering a judgment by default against the disobedient party; (8) In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him, or both, to pay, at such time as ordered by the court, the reasonable expenses, including attorney fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust. Such an order shall be subject to review on appeal from the final judgment. See TEX. R. Civ. P. 215.2(b) (emphasis added). 40. By only producing documents and information that could potentially support its bald argument that it made a reasonable effort to find a replacement tenant, and withholding documents and information that would show the results of any such efforts, Lionhead has attempted improperly to distort reality, and eliminate Miraki’s ability to offer evidence to support his affirmative defenses based on Lionhead’s failure to mitigate damages. 41. By failing or refusing to identify witnesses, or produce documents or other evidence that could show that any repairs were reasonable or necessary, or that any costs to perform any such repairs were reasonable and necessary, Lionhead has attempted improperly to eliminate Miraki’s ability to evaluate the merits of those claims during the discovery period. 42. Because Lionhead has failed to identify witnesses, or produce documents that could substantiate any allegations about the replacement tenant identified in Lionhead’s response to Interrogatory No. 6, including the lease agreement, and payment records, which would be MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGE 11 011 necessary to establish any specific amount of damages that possibly could be attributed to either Defendant, Lionhead has obstructed, and prohibited, Miraki and the Court from being able to obtain the evidence needed to confirm any specific amount of actual damages that could be awarded at trial. As such, Lionhead should be prohibited from offering any evidence at trial that purports to prove that any rent payments or other charges or costs allegedly not paid by either Defendant. 43. Because Lionhead has failed to identify any fact or expert witness it designated to testify regarding any reasonableness or necessity of any HVAC or other repair or replacement work, Lionhead should be prohibited from offering any evidence at trial that purports to prove that any repairs or replacement of any equipment was reasonable or necessary. 44. Because Lionhead has also failed to identify any fact or expert witness it designated to testify regarding any costs of any HVAC or other repair or replacement work, Lionhead should be prohibited from offering any evidence at trial that purports to prove that any alleged costs were reasonable or necessary. 45. If the Court does not appropriately sanction Plaintiff Lionhead, then it will be rewarding Plaintiff for withholding highly relevant information and documents that were responsive to written discovery requests that undeniably prejudiced Miraki in his ability to determine and assess any evidentiary basis of Plaintiffs claims, and adequately prepare for trial. 46. How is it possible for the Court to find that any specific amount of money is reasonable or necessary to compensate Plaintiff for any breach of any obligation by either Defendant if the Court is unaware of the specific amount of money Plaintiff has received from the replacement tenant who now occupies the Premises? MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGE 12 012 47. How is it possible for the Court to find that any amount of money is reasonable or necessary for any repairs to equipment when there is no documentation showing what specific repairs or replacements were made, what specific equipment was repaired or replaced, or whether any amounts were actually paid by Plaintiff? 48. How would it be possible for Miraki to confirm or disprove the merits of Plaintiffs claims during the discovery period if Plaintiff failed to produce, or identify, relevant evidence during the discovery period? 49. How is it possible for the Court to permit any witness to testify at trial regarding any of the breaches alleged by Plaintiff Lionhead, or any of the alleged damages, when Plaintiff failed to identify anyone in its Rule 194 required disclosures with knowledge of relevant facts on those topics, or identify the specific breaches in response to specific interrogatories? 50. Miraki has been improperly brought into this lawsuit based on a forged signature, and effectively has been denied his due process rights by Plaintiff’s failure to respond to written discovery in the manner required by the Texas Rules of Civil Procedure and the Court’s January 13, 2023 Scheduling Order. oir At this point, it would be well within the Court’s discretion to dismiss all claims against Miraki due to Plaintiffs failures to abide its discovery obligations. Hil. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant Miraki respectfully requests and prays that the Court consider the merits of this brief and motion for discovery sanctions, the evidence attached thereto, and issue an order that imposes discovery sanctions on Plaintiff Lionhead for its failure to comply with the obligations to timely respond to and supplement the proper discovery requests identified herein, and failure to obey the deadlines in the Court’s January MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGE 13 013 13, 2023 Scheduling Order, including the failures to timely produce responsive documents in a timely manner, and failures to timely identify witnesses who could testify to facts necessary to substantiate key facts about Plaintiff's alleged damages. Specifically, Defendant Miraki respectfully requests the Court issue the following Orders: 1) Due to Dezham’s failure to exchange any exhibit list or exhibit documents not previously produced during discovery on or before the December 26, 2023 deadline found in the January 13, 2023 Scheduling Order, Dezham is prohibited from introducing into evidence at trial any documents as evidence. 2) Due to Lionhead’s failure to exchange any exhibit list or exhibit documents not previously produced during discovery on or before the December 26, 2023 deadline found in the January 13, 2023 Scheduling Order, Lionhead is prohibited from introducing into evidence at trial any documents as evidence. 3) Due to Lionhead’s failure to identify, specify, or exchange copies of the documents that were generally named in Lionhead’s untimely filed Exhibit List (filed on January 3, 2024) as PX2, PX6, PX8, PX9, PX10, PX11, PX12, and PX 13, Lionhead is prohibited from introducing into evidence at trial the documents it generally named as PX2, PX6, PX8, PX9, PX10, PX11, PX12, and PX 13. 4) Due to Lionhead’s failure to identify in its mandatory disclosures (TEX. R. CIv. P. 194) any individual with knowledge of relevant facts on behalf of Lionhead, Lionhead is prohibited from presenting any testimony or document evidence during trial from anyone purportedly acting as a representative of Lionhead. MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGE 14 014 5) Due to Lionhead’s failure to identify any specific breach of contract by Defendant Dezham in response to Interrogatory No. 2, Lionhead is prohibited from presenting any testimony or document evidence that any breach by Dezham occurred. 6) Due to Lionhead’s failure to identify any specific breach of contract or guaranty by Defendant Miraki in response to Interrogatory No. 9, Lionhead is prohibited from presenting any testimony or document evidence that any breach by Miraki occurred. 7) Due to Lionhead’s failure to identify any consideration or benefit allegedly received by Miraki in connection with the lease agreement or alleged guaranty agreement made the basis of Lionhead’s claims against Miraki, in response to Request for Production Nos. 14 and 15, and Interrogatory Nos. 4 and 5, Lionhead is prohibited from presenting any testimony or document evidence that any consideration was received by Miraki. 8) Due to Lionhead’s failure to produce documents that could substantiate any allegations about the replacement tenant identified in Lionhead’s response to Interrogatory No. 6, and the disclosures required by TEX. R. CIv. P. 194, including the lease agreement, and payment records, which would be necessary to establish any specific amount of damages that possibly could be attributed to either Defendant, Lionhead has obstructed, and prohibited, Miraki and the Court from being able to obtain the evidence needed to confirm any specific amount of actual damages that could be awarded at trial. Accordingly, Lionhead is prohibited from presenting any testimony or document evidence at trial that purports to prove that Lionhead incurred any actual damages as a result of any act or omission by Miraki. MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGE 15 015 9) Due to Lionhead’s failure to identify in a timely manner any fact or expert witness it designated to testify regarding any reasonableness or necessity of any HVAC or other repair or replacement work, Lionhead is prohibited from offering any evidence at trial that purports to prove that any repairs or replacement of any equipment was reasonable or necessary. 10) Due to Lionhead’s failure to identify in a timely manner any fact or expert witness it designated to testify regarding any costs of any HVAC or other repair or replacement work, Lionhead is prohibited from presenting any testimony or document evidence at trial that purports to prove that any alleged costs were reasonable or necessary. Miraki further requests that the Court grant any further relief, at law or in equity, to which Miraki may be justly entitled. Respectfully Submitted, MORALES WALKER PLLC Sf EricD. Walker Eric D. WALKER State Bar No. 24047056 6060 N. Central Expy., Suite 500 Dallas, Texas 75206 972-948-3646 (Telephone) walker@mwtrialfirm.com Attorneys for Sorab Miraki MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGE 16 016 CERTIFICATE OF SERVICE I hereby certify that on April 15, 2024, all parties have been served with the foregoing document in accordance with the Texas Rules of Civil Procedure, as follows: Via Electronic Service: anikolopoulos@foxrothschild.com Andy Nikolopoulos Fox ROTHSCHILD, LLP 2501 N. Harwood St., Suite 1800 Dallas, Texas 75201 Telephone: 972-991-0889 Facsimile: 972-404-0516 Attorneys for Plaintiff Via Electronic Service: wydelaw@gmail.com Lauren Stone WYDE & STONE 10100 N. Central Expy., Suite 230 Dallas, Texas 75231 Telephone: 214-521-9100 Attorneys for Hossain Dezham Defendants Sf EricD. Walker ErIc D. WALKER MIRAKI’S SUPPLEMENTAL MOTION TO EXCLUDE AND FOR DISCOVERY SANCTIONS PAGE 17 017 Exhibit 1 CAUSE NO. DC-22-15163 LIONHEAD HOLDINGS LLC, IN THE DISTRICT COURT Plaintiff, Vv. 116™ JUDICIAL DISTRICT HOSSAIN MOHAMMAD DEZHAM d/b/a BURGER BUENO; HOSSAIN MOHAMMAD DEZHAM, Individually; and SORAB MIRAKI Defendants. DALLAS COUNTY, TEXAS PLAINTIFF’S OBJECTIONS AND RESPONSES TO DEFENDANT SORAB MIRAKIS FIRST WRITTEN DISCOVERY TO. Defendant Sorab Miraki, by and through his attorneys of record, MORALES WALKER PLLC, Eric D. Walker, 6060 N. Central Expy., Suite 500, Dallas, Texas 75206, walker@mwtrialfirm.com. TO. Defendant Hossain Mohammad Dezham, Individually and d/b/a Burger Bueno, by and through his attorneys of record, LONERGAN LAW FIRM PLLC, Gaylene Rogers Lonergan, 12801 N Central Expressway, Suite 150, Dallas, Texas 75243, grogers@lonerganlaw.com, Pursuant to the Texas Rules of Civil Procedure, Plaintiff Lionhead Holdings LLC (“Plaintiff’ or “Lionhead”) serves its Objections and Responses to Defendant Sorab Miraki’s First Written Discovery. L GENERAL OBJECTIONS 1 Plaintiff objects to Defendant’s definitions and instructions included in Defendant’s First Written Discovery Requests to the extent that they purport to impose obligations and requirements on Plaintiff in addition to those imposed by the Texas Rules of Civil Procedure regarding the discovery of information. Plaintiff further objects to the extent that they impose duties beyond those required by the Texas Rules of Civil Procedure, and the PLAINTIFF’S OBJECTIONS AND RESPONSES TO SORAB MIRAKI’S FIRST WRITTEN DISCOVERY Page | 148063011.1 018 requests containing same are unduly burdensome, vague, overly broad, unclear, ambiguous, and fail to identify with reasonable particularity the category of documents sought. 2. Plaintiff's answers are based on its present knowledge after reasonable investigation and based upon its interpretation and construction of the requests as limited by the objections contained herein. Plaintiff reserves the right to redact any portions of otherwise responsive and non-privileged documents that contain irrelevant nonresponsive or responsive privileged information. 3 Plaintiff will supplement its answers in accordance with the Texas Rules of Civil Procedure and/or the then current scheduling order of the Court. 4 Plaintiff objects to the disclosure to Defendant of any confidential or proprietary information or documents not relevant to the subject matter of this litigation. Confidential or proprietary information relevant to the subject matter of this litigation will be provided, subject to any general or specific objections, upon the entry of an appropriate Agreed Confidentiality Order; but, until such time as the Agreed Confidentiality Order becomes effective, Plaintiff objects to the disclosure to Defendant of any confidential or proprietary information or documents. Subject to, and without waiving the foregoing objections, Plaintiff will respond to Defendant’s First Written Discovery Requests only in accordance with the Texas Rules of Civil Procedure. 5 Plaintiff in all instances intends to preserve and does claim the attorney-client and work-product privileges when applicable. No disclosure will be made that is subject to a claim of privilege or work product. Subject to, and without waiving the foregoing objections, Plaintiff will respond to Defendant’s First Written Discovery Requests only in accordance with the Texas Rules of Civil Procedure. PLAINTIFF’S OBJECTIONS AND RESPONSES TO SORAB MIRAKI’S FIRST WRITTEN DISCOVERY Page 2 148063011.1 019 6. Plaintiff objects to any requests for electronically stored information (“ESI”) to the extent that same is not reasonably accessible or to the extent that production of same would result in undue burden or cost. Plaintiff also objects to the production of any metadata, as discovery of such data is not reasonably calculated to lead to the discovery of admissible evidence, nor is it relevant to prove any claim or defense. Plaintiff further objects to the production of any ESI to the extent that any such request requires the release of confidential or personal electronic information. IL. SPECIFIC OBJECTIONS AND ANSWERS TO INTERROGATORIES INTERROGATORY NO. 1: Identify each person who provided factual information that was used in connection with any of your responses to the interrogatories served by Miraki in this lawsuit, including the name, contact information, and relationship to any of the parties to this lawsuit. ANSWER: Tom Mantas, Owner Lionhead Holdings LLC By and through counsel of record: Fox Rothschild LLP Andy Nikolopoulos Nicole Feragen 214-231-5776 INTERROGATORY NO 2: Identify all documents and information you have in your possession that you believe supports your claim that Dezham breached the Lease Agreement prior to the filing of this lawsuit. ANSWER: Objection. The request improperly calls for Plaintiff to marshal its evidence prior to trial and requires a legal analysis invasive of the protected thought process of Plaintiff's counsel. The request requires Plaintiff's counsel to make a decision during the early discovery process as to what may be introduced as evidence, making the request objectionable on its face. Tex. R. Civ. P. 192.3(a), 192.5; Tex. R. Evid 401, 503. Subject to and without waiving the foregoing objection(s), Plaintiff responds as follows: See documents produced to date in this litigation, as well as Plaintiff’s live petition and initial and supplemental disclosures. PLAINTIFFS OBJECTIONS AND RESPONSES TO SORAB MIRAKI’S FIRST WRITTEN DISCOVERY Page 3 148063011.1 020 INTERROGATORY NO 3: If you contend that Miraki was a “tenant” according to the terms of the Lease Agreement signed by Dezham on June 27, 2018, please identify any and all things you contend Miraki received as consideration. ANSWER: Objection. This request assumes facts not yet established, misstates the evidence, and calls for a legal conclusion. Plaintiff responds as follows: Miraki is a Personal Guarantor under the Lease Agreement. INTERROGATORY NO. 4: If you contend that Miraki received any payment, compensation, assignment of rights, or other thing you contend amounts to consideration, in exchange for signing the Guaranty of Lease attached to the Lease Agreement signed by Dezham on June 27, 2018, please identify any and all things you contend Miraki received as consideration. ANSWER: Objection. The request calls for an improper narrative that seeks complete factual detail without the benefit of direct questioning or cross-examination. Further, the request improperly calls for Plaintiff to marshal its evidence prior to trial and requires a legal analysis as to “consideration,” invasive of the protected thought process of Plaintiff's counsel, Tex. R. Civ. P. 192.3(a), 192.5; Tex. R. Evid 401, 503. Subject to and without waiving the foregoing objection(s), Plaintiff responds as follows: Plaintiff refers to LIONHEAD00030, Exhibit A2 Guaranty of Lease, which describes the mutual receipt and adequacy of consideration and substantial benefit received by Guarantor from Landlord. INTERROGATORY NO. 5: If you contend that Miraki received any payment, compensation, assignment of rights, or other thing you contend amounts to consideration, in exchange for signing the Guaranty of Lease attached to the Lease Agreement signed by Dezham on June 27, 2018, please explain how you believe that alleged consideration provided anything of value to Miraki. ANSWER: Objection. The request calls for an improper narrative that seeks complete factual detail without the benefit of direct questioning or cross-examination. Further, the request improperly calls for Plaintiff to marshal its evidence prior to trial and requires a legal analysis as to “consideration,” invasive of the protected thought process of Plaintiff's counsel. Tex. R. Civ. P. 192.3(a), 192.5; Tex. R. Evid 401, 503. Subject to and without waiving the foregoing objection(s), Plaintiff responds as follows: Plaintiff refers to LIONHEAD00030, Exhibit A2 Guaranty of Lease, which describes the mutual receipt and adequacy of consideration and substantial benefit received by Guarantor from Landlord. INTERROGATORY NO. 6: If you contend that Lionhead performed any action that could be considered as mitigating its damages, including but not limited to sending any notice to Miraki that Dezham had failed to perform his payment obligations, or that Lionhead took any action to find a replacement tenant, please identify any and all things you contend Lionhead performed to mitigate its damages. ANSWER: Objection. The request calls for an improper narrative that seeks complete factual detail without the benefit of direct questioning or cross-examination. Further, the PLAINTIFF’S OBJECTIONS AND RESPONSES TO SORAB MIRAKI’S FIRST WRITTEN DISCOVERY Page 4 148063011.1 021 request improperly calls for Plaintiff to marshal its evidence prior to tr