Preview
Electronically Filed
9/21/2018 4:10 PM
Lois Rogers, Smith County District Clerk
Reviewed By: Terry Morrow
CAUSE NO. 16-2512-B
EC TYLER HOUSING PARTNERS, LTD. § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. § SMITH COUNTY
§
TERRY GRAHAM, TREY GRAHAM, and §
TERRY GRAHAM INTERESTS, LTD., §
§
Defendants. § 114th JUDICIAL DISTRICT
PLAINTIFF EC TYLER HOUSING PARTNERS, LTD.’S RESPONSE IN OPPOSITION
TO MOTION TO AMEND AGREED SCHEDULING ORDER
Plaintiff EC Tyler Housing Partners, Ltd. (“EC Tyler”) files this Response In Opposition
to Third-Party Defendant Todd Winn, Individually and d/b/a Todd Winn Construction’s Motion
to Amend Agreed Scheduling Order and respectfully shows the Court the following:
I. Introduction
Third-Party Defendant Todd Winn, Individually and d/b/a Todd Winn Construction
(“Winn”) seeks an extension of his deadline to designate experts yet fails to establish good cause
for the requested delay. Instead, Winn mistakenly claims that he may be unable to rebut expert
reports served by Defendant and Third-Party Plaintiff Terry Graham Interests, Ltd. (“TGI”) in
response to EC Tyler’s claims against TGI. Third-Party Defendant Todd Winn, Individually and
d/b/a Todd Winn Construction’s Motion to Amend Agreed Scheduling Order (“Motion”), at ¶¶
1-3. Winn’s claim is simply incorrect, as is his unsupported assertion that “[t]he inability for
Winn to designate rebuttal experts after September 28, 2018 would be unfairly prejudicial to
Winn.” Motion, at ¶ 4. The Court should deny Winn’s Motion.
PLAINTIFF’S RESPONSE IN OPPOSITION TO MOTION TO AMEND AGREED SCHEDULING
ORDER – Page 1
II. Relevant Factual Background
1. On January 11, 2018, the Court entered its Agreed Order Regarding Defendant
Terry Graham Interests, Ltd.’s Amended Motion For Leave to File Third Party Petition.
2. Defendant Terry Graham Interests, Ltd. filed its Third-Party Petition on January
18, 2018.
3. On February 14, 2018, Winn filed his Original Answer. Winn was represented by
David B. Griffith of Griffith Law Firm, P.C.
4. On March 12, 2018, the Court signed its Amended Agreed Scheduling Order.
The Amended Agreed Scheduling Order was signed by counsel for all parties as “AGREED.”
Among other deadlines, the parties agreed to and the Amended Agreed Scheduling Order
provided for the following deadlines for the designation of expert witnesses:
August 31, 2018 Deadline for parties seeking affirmative relief to designate
experts in response to a request under TEXAS RULE OF
CIVIL PROCEDURE 194.2(f) and to provide reports, if any,
of an expert within that party’s control.
September 28, Deadline for parties opposing affirmative relief to designate
2018 rebuttal experts in response to a request under TEXAS RULE
OF CIVIL PROCEDURE 194.2(f) and to provide reports, if
any, of an expert within that party’s control.
5. On August 15, 2018, Winn filed his Agreed Motion For Substitution of Counsel,
asking to substitute Clayton E. Devin and Jason M. Jung of Macdonald Devin, P.C. for David B.
Griffith of Griffith Law Firm, P.C. Winn’s Agreed Motion For Substitution of Counsel
specifically represented that the requested substitution of counsel would not harm or prejudice
the other parties and was not sought for delay.1
1
These representations make it all the more surprising that the first substantive motion that Winn’s new counsel
filed in this case is to request delay.
PLAINTIFF’S RESPONSE IN OPPOSITION TO MOTION TO AMEND AGREED SCHEDULING
ORDER – Page 2
6. On September 4, 2018, counsel for Winn sent an email, requesting to inspect the
two properties at issue on either September 12 or 13, 2018. Winn had not made any prior
requests to inspect EC Tyler’s property.
7. On September 6, 2018, counsel for EC Tyler responded that September 12 and 13,
2018 did not work. On September 14, 2018, counsel for EC Tyler proposed conducting the
requested inspection on September 17, 20, 21, or 27, 2018. Although counsel for Winn replied
that he would check on the proposed dates, as of the filing of this Response, counsel for Winn
has not otherwise responded.
III. Winn has not shown good cause to modify his expert discovery deadlines.
Texas Rule of Civil Procedure 191.1 is clear that “[e]xcept where prohibited, the
procedures and limitations set forth in the rules pertaining to discovery may be modified in any
suit by the agreement of the parties or by court order for good cause.” Here, since the parties
have not reached an agreement to modify Winn’s expert discovery deadlines, Winn must
establish good cause for any such modification.
Winn’s Motion appears to rely upon his concern that TGI could serve expert reports on
September 28, 2018, to which Winn would not have an opportunity to rebut. See Motion, at ¶¶
1-3. Winn’s concern, however, is wholly misplaced. The deadline for “parties seeking
affirmative relief” to designate their experts was August 31, 2018. See Amended Agreed
Scheduling Order, at p. 1. The deadline for “parties opposing affirmative relief” is September
28, 2018. Id. With respect to TGI’s claims against Winn, TGI is a party “seeking affirmative
relief” and had an August 31, 2018 deadline to designate experts on the issues for which TGI
was seeking affirmative relief. Since “Winn is solely opposing affirmative relief by [TGI]”
(Motion, at ¶ 3), Winn’s deadline is September 28, 2018.
PLAINTIFF’S RESPONSE IN OPPOSITION TO MOTION TO AMEND AGREED SCHEDULING
ORDER – Page 3
Contrary to Winn’s apparent confusion, there is no scenario where TGI has the ability to
designate an expert on its claims for affirmative relief against Winn to which Winn is unable to
rebut. The mere fact that, in addition to its August 31, 2018 deadline to designate experts on its
claims against Winn, TGI also has a September 28, 2018 deadline to designate experts in
response to EC Tyler’s claims for affirmative relief against TGI does not create the scenario
Winn apparently fears.
Even if Winn’s concern were correct—which itfacially is not—Winn has provided no
support whatsoever for his claim that his inability to designate rebuttal experts after September
28, 2018 “would be unfairly prejudicial.” Motion, at ¶ 4. Winn provides no explanation or
evidence to establish any prejudice he might suffer by being held to the very deadline to which
he agreed in March 2018.
Although not addressed in the Motion, obviously the appearance of Winn’s new counsel
does not constitute good cause. Winn has had since early-March 2018 to conduct discovery and
prepare his expert disclosures. The past six months have provided Winn with ample opportunity
and time. The Amended Agreed Scheduling Order was agreed upon by all parties—including
Winn. Winn has not established good cause to modify his expert disclosure deadline, and the
Court should deny the Motion.
IV. Winn’s requested inspection is a red herring.
Winn attempt to buttress his Motion by arguing that “Plaintiff’s failure to provide access
to the property at issue in this lawsuit has deprived Winn’s ability to fully respond to expert
reports and opinion, analyze the claims being asserted, and prepare a defense within the current
deadlines set forth in the scheduling order.” Third-Party Defendant Todd Winn, Individually and
d/b/a Todd Winn Construction’s Supplement to Motion to Amend Agreed Scheduling Order, at ¶
PLAINTIFF’S RESPONSE IN OPPOSITION TO MOTION TO AMEND AGREED SCHEDULING
ORDER – Page 4
6. Winn further claims, “[e]ven if Plaintiff provided access and allowed Winn and its experts to
inspect the property at a later date, there is insufficient time to provide reports by September 28,
2018.” Id, at ¶ 7.
A brief review of the communications regarding the requested inspection reveals that this
is nothing more than an attempt to manufacture some basis for the Motion. Winn did not request
an inspection until September 4, 2018—months after the entry of the Amended Agreed
Scheduling Order and approximately three weeks before his deadline to designate his experts.
Even then, Winn requested that the inspection occur on September 12 or 13, 2018—dates
approximately two weeks before his deadline to designate his experts. EC Tyler proposed
conducting the requested inspection on September 17, 20, 21, or 27, 2018. Despite the professed
importance of the inspection, however, Winn has not responded to confirm any of the dates
offered or to request alternative dates. Winn’s failure to respond reveals that the inspection—
which Winn could have requested at any point in the past six months—is simply an attempt to
manufacture good cause where none exists.
Similarly, Winn fails to provide any explanation or evidence for the claim that the
inspection dates offered by EC Tyler somehow leave “insufficient time to provide reports by
September 28, 2018.” Id, at ¶ 7. To the contrary, the September 17, 2018 date EC Tyler offered
is only several days after the September 13 date Winn requested and almost two weeks before
Winn’s deadline to designate his experts.
Winn has not established good cause to modify his expert disclosure deadline, and the
Court should deny the Motion.
PLAINTIFF’S RESPONSE IN OPPOSITION TO MOTION TO AMEND AGREED SCHEDULING
ORDER – Page 5
PRAYER
WHEREFORE, Plaintiff EC Tyler Housing Partners, Ltd. respectfully requests that this
Court deny Third-Party Defendant Todd Winn, Individually and d/b/a Todd Winn Construction’s
Motion to Amend Agreed Scheduling Order in its entirety and grant EC Tyler all such other and
further relief, both general and special, in law or in equity, to which it may be justly entitled.
Dated: September 21, 2018 Respectfully Submitted,
/s/ P. William Stark
P. William Stark
State Bar No. 24046902
starkb@gtlaw.com
Brennwyn B. Romano
State Bar No. 24099028
romanob@gtlaw.com
GREENBERG TRAURIG, LLP
2200 Ross Avenue, Suite 5200
Dallas, Texas 75201
Telephone: (214) 665-3600
Facsimile: (214) 665-3601
ATTORNEYS PLAINTIFF EC TYLER
HOUSING PARTNERS, LTD.
PLAINTIFF’S RESPONSE IN OPPOSITION TO MOTION TO AMEND AGREED SCHEDULING
ORDER – Page 6
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the above and foregoing
document was forwarded to the following attorneys of record via the Court’s ECF system on this
the 21st day of September 2018.
Jimmy M. Negem Keith W. Starr
Joe M. Worthington Steven W. Comte
Negem & Worthington Starr Schoenbrun & Comte PLLC
1828 ESE Loop 323, Suite R – 1A 110 North College Ave., Suite 1700
Tyler, Texas 75701 Tyler, Texas 75702
Jimmy@Negemlaw.com keith@sscfirm.com
Joe@Negemlaw.com steven@sscfirm.com
David B. Griffith Clayton E. Devin
Griffith Law Firm, P.C. Jason M. Jung
404 Titus Street Macdonald Devin, P.C.
P.O. Box 864 3800 Renaissance Tower
Gilmer, Texas 75644-0864 1201 Elm Street
davidg@griffithlawfirm.com Dallas, Texas 75270-2130
cdevin@macdonalddevin.com
jjung@macdonalddevin.com
/s/ P. William Stark
P. William Stark
DAL 80802452v1
PLAINTIFF’S RESPONSE IN OPPOSITION TO MOTION TO AMEND AGREED SCHEDULING
ORDER – Page 7
Preview
Electronically Filed 9/21/2018 4:10 PM Lois Rogers, Smith County District Clerk Reviewed By: Terry Morrow CAUSE NO. 16-2512-B EC TYLER HOUSING PARTNERS, LTD. § IN THE DISTRICT COURT OF § Plaintiff, § § v. § SMITH COUNTY § TERRY GRAHAM, TREY GRAHAM, and § TERRY GRAHAM INTERESTS, LTD., § § Defendants. § 114th JUDICIAL DISTRICT PLAINTIFF EC TYLER HOUSING PARTNERS, LTD.’S RESPONSE IN OPPOSITION TO MOTION TO AMEND AGREED SCHEDULING ORDER Plaintiff EC Tyler Housing Partners, Ltd. (“EC Tyler”) files this Response In Opposition to Third-Party Defendant Todd Winn, Individually and d/b/a Todd Winn Construction’s Motion to Amend Agreed Scheduling Order and respectfully shows the Court the following: I. Introduction Third-Party Defendant Todd Winn, Individually and d/b/a Todd Winn Construction (“Winn”) seeks an extension of his deadline to designate experts yet fails to establish good cause for the requested delay. Instead, Winn mistakenly claims that he may be unable to rebut expert reports served by Defendant and Third-Party Plaintiff Terry Graham Interests, Ltd. (“TGI”) in response to EC Tyler’s claims against TGI. Third-Party Defendant Todd Winn, Individually and d/b/a Todd Winn Construction’s Motion to Amend Agreed Scheduling Order (“Motion”), at ¶¶ 1-3. Winn’s claim is simply incorrect, as is his unsupported assertion that “[t]he inability for Winn to designate rebuttal experts after September 28, 2018 would be unfairly prejudicial to Winn.” Motion, at ¶ 4. The Court should deny Winn’s Motion. PLAINTIFF’S RESPONSE IN OPPOSITION TO MOTION TO AMEND AGREED SCHEDULING ORDER – Page 1 II. Relevant Factual Background 1. On January 11, 2018, the Court entered its Agreed Order Regarding Defendant Terry Graham Interests, Ltd.’s Amended Motion For Leave to File Third Party Petition. 2. Defendant Terry Graham Interests, Ltd. filed its Third-Party Petition on January 18, 2018. 3. On February 14, 2018, Winn filed his Original Answer. Winn was represented by David B. Griffith of Griffith Law Firm, P.C. 4. On March 12, 2018, the Court signed its Amended Agreed Scheduling Order. The Amended Agreed Scheduling Order was signed by counsel for all parties as “AGREED.” Among other deadlines, the parties agreed to and the Amended Agreed Scheduling Order provided for the following deadlines for the designation of expert witnesses: August 31, 2018 Deadline for parties seeking affirmative relief to designate experts in response to a request under TEXAS RULE OF CIVIL PROCEDURE 194.2(f) and to provide reports, if any, of an expert within that party’s control. September 28, Deadline for parties opposing affirmative relief to designate 2018 rebuttal experts in response to a request under TEXAS RULE OF CIVIL PROCEDURE 194.2(f) and to provide reports, if any, of an expert within that party’s control. 5. On August 15, 2018, Winn filed his Agreed Motion For Substitution of Counsel, asking to substitute Clayton E. Devin and Jason M. Jung of Macdonald Devin, P.C. for David B. Griffith of Griffith Law Firm, P.C. Winn’s Agreed Motion For Substitution of Counsel specifically represented that the requested substitution of counsel would not harm or prejudice the other parties and was not sought for delay.1 1 These representations make it all the more surprising that the first substantive motion that Winn’s new counsel filed in this case is to request delay. PLAINTIFF’S RESPONSE IN OPPOSITION TO MOTION TO AMEND AGREED SCHEDULING ORDER – Page 2 6. On September 4, 2018, counsel for Winn sent an email, requesting to inspect the two properties at issue on either September 12 or 13, 2018. Winn had not made any prior requests to inspect EC Tyler’s property. 7. On September 6, 2018, counsel for EC Tyler responded that September 12 and 13, 2018 did not work. On September 14, 2018, counsel for EC Tyler proposed conducting the requested inspection on September 17, 20, 21, or 27, 2018. Although counsel for Winn replied that he would check on the proposed dates, as of the filing of this Response, counsel for Winn has not otherwise responded. III. Winn has not shown good cause to modify his expert discovery deadlines. Texas Rule of Civil Procedure 191.1 is clear that “[e]xcept where prohibited, the procedures and limitations set forth in the rules pertaining to discovery may be modified in any suit by the agreement of the parties or by court order for good cause.” Here, since the parties have not reached an agreement to modify Winn’s expert discovery deadlines, Winn must establish good cause for any such modification. Winn’s Motion appears to rely upon his concern that TGI could serve expert reports on September 28, 2018, to which Winn would not have an opportunity to rebut. See Motion, at ¶¶ 1-3. Winn’s concern, however, is wholly misplaced. The deadline for “parties seeking affirmative relief” to designate their experts was August 31, 2018. See Amended Agreed Scheduling Order, at p. 1. The deadline for “parties opposing affirmative relief” is September 28, 2018. Id. With respect to TGI’s claims against Winn, TGI is a party “seeking affirmative relief” and had an August 31, 2018 deadline to designate experts on the issues for which TGI was seeking affirmative relief. Since “Winn is solely opposing affirmative relief by [TGI]” (Motion, at ¶ 3), Winn’s deadline is September 28, 2018. PLAINTIFF’S RESPONSE IN OPPOSITION TO MOTION TO AMEND AGREED SCHEDULING ORDER – Page 3 Contrary to Winn’s apparent confusion, there is no scenario where TGI has the ability to designate an expert on its claims for affirmative relief against Winn to which Winn is unable to rebut. The mere fact that, in addition to its August 31, 2018 deadline to designate experts on its claims against Winn, TGI also has a September 28, 2018 deadline to designate experts in response to EC Tyler’s claims for affirmative relief against TGI does not create the scenario Winn apparently fears. Even if Winn’s concern were correct—which itfacially is not—Winn has provided no support whatsoever for his claim that his inability to designate rebuttal experts after September 28, 2018 “would be unfairly prejudicial.” Motion, at ¶ 4. Winn provides no explanation or evidence to establish any prejudice he might suffer by being held to the very deadline to which he agreed in March 2018. Although not addressed in the Motion, obviously the appearance of Winn’s new counsel does not constitute good cause. Winn has had since early-March 2018 to conduct discovery and prepare his expert disclosures. The past six months have provided Winn with ample opportunity and time. The Amended Agreed Scheduling Order was agreed upon by all parties—including Winn. Winn has not established good cause to modify his expert disclosure deadline, and the Court should deny the Motion. IV. Winn’s requested inspection is a red herring. Winn attempt to buttress his Motion by arguing that “Plaintiff’s failure to provide access to the property at issue in this lawsuit has deprived Winn’s ability to fully respond to expert reports and opinion, analyze the claims being asserted, and prepare a defense within the current deadlines set forth in the scheduling order.” Third-Party Defendant Todd Winn, Individually and d/b/a Todd Winn Construction’s Supplement to Motion to Amend Agreed Scheduling Order, at ¶ PLAINTIFF’S RESPONSE IN OPPOSITION TO MOTION TO AMEND AGREED SCHEDULING ORDER – Page 4 6. Winn further claims, “[e]ven if Plaintiff provided access and allowed Winn and its experts to inspect the property at a later date, there is insufficient time to provide reports by September 28, 2018.” Id, at ¶ 7. A brief review of the communications regarding the requested inspection reveals that this is nothing more than an attempt to manufacture some basis for the Motion. Winn did not request an inspection until September 4, 2018—months after the entry of the Amended Agreed Scheduling Order and approximately three weeks before his deadline to designate his experts. Even then, Winn requested that the inspection occur on September 12 or 13, 2018—dates approximately two weeks before his deadline to designate his experts. EC Tyler proposed conducting the requested inspection on September 17, 20, 21, or 27, 2018. Despite the professed importance of the inspection, however, Winn has not responded to confirm any of the dates offered or to request alternative dates. Winn’s failure to respond reveals that the inspection— which Winn could have requested at any point in the past six months—is simply an attempt to manufacture good cause where none exists. Similarly, Winn fails to provide any explanation or evidence for the claim that the inspection dates offered by EC Tyler somehow leave “insufficient time to provide reports by September 28, 2018.” Id, at ¶ 7. To the contrary, the September 17, 2018 date EC Tyler offered is only several days after the September 13 date Winn requested and almost two weeks before Winn’s deadline to designate his experts. Winn has not established good cause to modify his expert disclosure deadline, and the Court should deny the Motion. PLAINTIFF’S RESPONSE IN OPPOSITION TO MOTION TO AMEND AGREED SCHEDULING ORDER – Page 5 PRAYER WHEREFORE, Plaintiff EC Tyler Housing Partners, Ltd. respectfully requests that this Court deny Third-Party Defendant Todd Winn, Individually and d/b/a Todd Winn Construction’s Motion to Amend Agreed Scheduling Order in its entirety and grant EC Tyler all such other and further relief, both general and special, in law or in equity, to which it may be justly entitled. Dated: September 21, 2018 Respectfully Submitted, /s/ P. William Stark P. William Stark State Bar No. 24046902 starkb@gtlaw.com Brennwyn B. Romano State Bar No. 24099028 romanob@gtlaw.com GREENBERG TRAURIG, LLP 2200 Ross Avenue, Suite 5200 Dallas, Texas 75201 Telephone: (214) 665-3600 Facsimile: (214) 665-3601 ATTORNEYS PLAINTIFF EC TYLER HOUSING PARTNERS, LTD. PLAINTIFF’S RESPONSE IN OPPOSITION TO MOTION TO AMEND AGREED SCHEDULING ORDER – Page 6 CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the above and foregoing document was forwarded to the following attorneys of record via the Court’s ECF system on this the 21st day of September 2018. Jimmy M. Negem Keith W. Starr Joe M. Worthington Steven W. Comte Negem & Worthington Starr Schoenbrun & Comte PLLC 1828 ESE Loop 323, Suite R – 1A 110 North College Ave., Suite 1700 Tyler, Texas 75701 Tyler, Texas 75702 Jimmy@Negemlaw.com keith@sscfirm.com Joe@Negemlaw.com steven@sscfirm.com David B. Griffith Clayton E. Devin Griffith Law Firm, P.C. Jason M. Jung 404 Titus Street Macdonald Devin, P.C. P.O. Box 864 3800 Renaissance Tower Gilmer, Texas 75644-0864 1201 Elm Street davidg@griffithlawfirm.com Dallas, Texas 75270-2130 cdevin@macdonalddevin.com jjung@macdonalddevin.com /s/ P. William Stark P. William Stark DAL 80802452v1 PLAINTIFF’S RESPONSE IN OPPOSITION TO MOTION TO AMEND AGREED SCHEDULING ORDER – Page 7