Preview
Received and E-Filed for Record
5/2/2019 1:42 PM
Melisa Miller, District Clerk
Montgomery County, Texas
Deputy Clerk, Megan Shiflett
CAUSE NO. 19-03-04392
PUSH START INDUSTRIES, LLC, & § IN THE DISTRICT COURT OF
ORGAN MOUNTAIN ENERGY, LLC §
§
Plaintiffs, §
§
v. §
§ MONTGOMERY COUNTY, TEXAS
HOUSTON GULF ENERGY §
CORPORATION, JACK TOMPKINS, §
ANDREW LEVY, PHIL TUTTLE, §
PAUL BORNSTEIN, AND JOHN §
EHRMAN §
§ 284TH JUDICIAL DISTRICT
Defendants.
PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSES IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR EXPEDITED DISCOVERY
Plaintiffs file this Reply to both Defendant Tuttle’s and the Ehrman Defendants’ Responses
in Opposition to Plaintiffs’ Motion for Expedited Discovery, and would respectfully show that
civil litigation is meant to uncover the truth, not hide it. Defendants’ Responses confirm that their
primary objective is obfuscation at all costs through irrelevant procedural arguments in their
continuing brazen attempt to complete their fraud and conspiracy at Plaintiffs’ expense.
A. The discovery sought will likely show that Defendant Ehrman controlled HGEC from
2014 through 2018, that all of the Defendants knew it, and that they all concealed that
information from Plaintiffs, to Plaintiffs’ detriment.
1. Perhaps the most telling omission from Defendants’ Responses is that neither deny
that Defendant Ehrman is a fraudster (because he is), or that all of the individual Defendants were
intimately associated with Ehrman at Houston Gulf Energy Corporation (“HGEC”) from 2015
through 2018 (because they were). For Defendants to argue that requested discovery is
“immaterial,” “unwarranted” and “objectionable,” is facially absurd. Attached hereto are eleven
HGEC Certificates of Amendment, filed by HGEC under penalty of perjury with the Texas
the discovery seeks to answer that question. The discovery sought is relevant because during this
time it was almost certainly Ehrman controlling HGEC, when HGEC, under penalty of perjury,
was telling Plaintiffs and the rest of the world, that he was not.
3. The discovery sought will also explain why John Thibeaux, a person whom HGEC
thrice banished from the company in 2016, signed the Second Finders’ Fee Agreement as HGEC’s
CEO on March 2, 2017. 4 According to the Texas Secretary of State’s filings, on
March 2, 2017 Defendant Bornstein was CEO, and Thibeaux was not associated with HGEC. Yet
the signature blocks on the Second Finders’ Fee Agreement are as follows:
4. Even more inexplicable is the Ehrman Defendants’ Response, wherein Bornstein’s
own lawyer twice claims that Bornstein never signed the Second Finders’ Fee Agreement:
“[P]laintiffs alleged claims for fraud relate to a) an alleged March 2017 Finder’s Fee Agreement,
4
The March 2, 2017, Finders’ Fee Agreement (“Second Finders’ Fee Agreement”) is attached as Exhibit B. (Emphasis
added.)
3
that was not signed by any of the individual defendants…” 5 See directly above. Is that not
Defendant Bornstein’s signature? If not, whose signature is it?
5. Concerning the Second Finder’s Fee Agreement, there is considerable confusion
over who signed it on behalf of HGEC. On March 23, 2017, “John” informs Plaintiffs’ principal,
Dennis Rogers, that “Paul” would sign a new Finders’ Fee Agreement if that is “what [Rogers]
wanted.” 6 Of course based on Defendant Bornstein’s supposed signature (see above), Rogers
naturally thought Defendant Bornstein had already signed the Second Finders’ Fee Agreement.
Rogers responds to “John,” inquiring: “Did he (Paul Bornstein) not sign this agreement?” 7
6. At this point, both Bornstein and “John” (probably Ehrman masquerading as
Thibeaux) assure Rogers that Bornstein did sign the Second Finders’ Fee Agreement:
From john@hgecorp: “Paul did sign and thus we are bound and have been paying. If there
8
were skullduggery you would not have been paid. Paul is the President.”
From pabornstein@aol.com: “I recall signing the doc and sending iy (sic) back to you
John.” 9
So who did sign the Second Finder’s Fee Agreement? Was it Bornstein? Was it Thibeaux? If it
was Thibeaux who was no longer associated with HGEC in “any capacity,” why? 10 Was it Ehrman
pretending to be Thibeaux? Was is it Ehrman pretending to be Bornstein? Apparently, not even
Bornstein’s and Ehrman’s counsel knows the story, but nonetheless unequivocally twice takes the
position that the above signature is not Defendant Bornstein’s. Another question presented: if
Bornstein was president as “John” claims in his March 23, 2017 email and as the Secretary of
5
(Emphasis added.) Ehrman Defendants’ Response, 2. See also Ehrman Defendants’ Response, 6 (“Furthermore,
none of the requested discovery will enable Plaintiffs to overcome the statute of frauds defense to the Finder’s Fee
that was not signed by any of the individual defendants.”)(Emphasis added.)
6
The March 23, 2017 email is attached as Exhibit C. Each of these representations were made directly to Plaintiff’s
principal, Mr. Rogers.
7
Id.
8
Id.
9
Id.
10
Certificate of Amendment filed December 13, 2016, attached at Exhibit A.
4
State’s filings show, why did Bornstein sign the Second Finders’ Fee Agreement as a “Director,”
and not as President? 11 The discovery sought, including the deposition of Ehrman, should solve
all of these mysteries, and it is indisputably relevant to Plaintiffs’ causes of action.
B. Defendants’ claim that “no amount of discovery” would support Plaintiffs’ causes of
action is untrue.
7. While simultaneously refusing to provide discovery, Defendants take the
convenient position that the Plaintiffs cannot prevail even if the discovery sought were produced.
To support this logical leap, Defendants argue that statute of frauds prevents recovery based on
the Second Finders’ Fee Agreement (which according to Defendant Bornstein’s lawyer, Bornstein
did not sign), and that two emails (one in October 2015 and the other in January 2017) show that
Plaintiffs cannot meet the justifiable reliance element of fraud. These arguments are ludicrous.
8. With respect to the statute of frauds argument, in their Response to Defendants’
TCPA Motions, Plaintiffs will show that the statute of frauds is wholly inapplicable. With respect
to the “justifiable reliance” argument, it is not the role of the court to make a summary
determination of justifiable reliance based on two emails (which are taken out of context) before
discovery even commences, and itis not the role of a defendant to conclude that no amount of
discovery could support a plaintiff’s causes of action without actually producing the discovery.
The discovery sought should uncover “who knew what and when.” And as shown above,
Plaintiffs, with good reason, believe that the discovery will show that all of the named Defendants
knew Ehrman controlled HGEC during all relevant times, and that they intentionally concealed
that fact from Plaintiffs. That is evidence of fraud and conspiracy.
9. To more specifically rebut Defendants’ arguments, Plaintiffs do not deny that by
the September 21, 2017 Board Resolution (“Board Resolution”) they had uncovered Ehrman’s
11
Id.
5
identity. 12 It was during this time that Plaintiffs were assured by HGEC and its Board that Ehrman,
though associated with HGEC, was not materially involved in HGEC’s day-to-day operations.
The Board Resolution, wherein Defendants Tomkins, Levy, Bornstein and Tuttle all attest that
they are aware of Defendant Ehrman’s “background issues” and affirm his allegedly non-
controlling position as “Director of Special Projects,” was ostensibly drafted and signed to allay
Plaintiffs’ concerns. 13
10. Indeed, to further entice Plaintiffs to continue doing business with HGEC, the
Board Resolution approved the sale of 6% of the Incartus Galveston Joint Venture to Plaintiff
Organ Mountain LLC (the “sale” was going to be in the form of an assignment of HGEC’s 6%
interest in the joint venture to Organ Mountain). 14 Thus, the two emails cited by Defendants have
no bearing on the their defenses (other than the first is evidence that Defendant Ehrman was
illegally running the company when Defendant Tuttle was the designated President/CEO, and the
second is evidence that HGEC was not paying Plaintiffs). The discovery sought will uncover the
communications between the Defendants both before and after the Board Resolution, which is
certainly relevant to Plaintiffs’ causes of action, and will likely show the Board Resolution was a
sham, and that Defendant Ehrman always operated HGEC during the relevant time periods. 15
12
The Board Resolution is attached as Exhibit D.
13
Id.
14
Id.
15
That Defendants make a “justifiable reliance” argument is a tacit admission that Plaintiffs have met their burden to
provide prima facie evidence of their fraud cases because Defendants are attempting to rebut the justifiable reliance
element for fraud. The TCPA does not require the Plaintiffs provide evidence sufficient to prove their case by a
preponderance of the evidence on the merits, it requires only prima facie evidence or “evidence sufficient as a matter
of law to establish a given fact if it is not rebutted or contradicted.”
In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015)
(emphasis added).
6
C. Plaintiffs immediately sought discovery after retaining new counsel well within the
time constructs provided for by the TCPA.
11. The Dallas County court transferred the case to this Court on or about March 27,
2019. After the transfer, on April 17, 2019, Plaintiffs sought and retained counsel in closer
proximity to Montgomery County, Texas to serve as their lead counsel. Per the TCPA, Plaintiffs’
new counsel immediately sought limited discovery on April 22, 2019, two business days after
being retained, and some 57 days before June 18, 2019. 16
12. The fact that Plaintiffs did not seek discovery in Dallas County is irrelevant.
Lawyers in different venues make tactical and strategic decisions for many different, legitimate
reasons. More importantly, that Plaintiffs now seek limited discovery in no way prejudices the
Defendants – the statute provides for such discovery in the time period in which it is sought. TEX.
CIV. PRAC. & REM. CODE § 27.006(b). Moreover, in a typical case, Defendants would be required
to respond to unlimited requests for production and requests for admission, and 25 interrogatories
within 30 days. In this instance, Plaintiffs sought tailored discovery: one request for admission,
one interrogatory, eight requests for production (three of which Defendant Tuttle voluntarily
answered), and one limited deposition, and provided Defendants with more than 50 days to
respond.
D. The TCPA provides the Court express authority to extend the hearing date 120 days
after the Motion is served. No attorney verification is necessary.
13. TEX. CIV. PRAC. & REM CODE § 27.004(c) provides the Court express authority to
hold a TCPA hearing 120 days after its service:
If the court allows discovery under Section 27.006(b), the court may extend the
hearing date to allow discovery under that subsection, but in no event shall the
hearing occur more than 120 days after the service of the motion under Section
27.003.
16
The Affidavit of Bradley M. Kirklin is attached as Exhibit E.
7
Thus, Plaintiffs “verification” argument is moot. The Court does not need counsel’s verification
to continue the hearing to June 18, 2019. 17 That much of Defendants’ argument focuses on an
irrelevant verification is indicative of Defendants’ efforts to conceal the truth. Regardless,
Plaintiffs’ counsel’s verification is attached as Exhibit E, which cures the issue.
E. Defendant Tuttle’s health has not prevented him from filing his TCPA Motion to
Dismiss, and therefore it should not prevent him from complying with TCPA
discovery.
14. While Defendant Tuttle’s health situation is certainly unfortunate, it does not negate
his duty to provide the requested discovery. Indeed, this is further evidence of Defendant Tuttle
(or his lawyers) seeking to have it both ways. If Defendant Tuttle is competent enough to direct
his counsel to file a Motion to Dismiss and a Motion to Transfer Venue, fundamental fairness
requires that he be required to comply with the rule requiring responses to specific and limited
discovery. In fact, Mr. Tuttle (or his lawyers) voluntarily responded to Requests for Production
Nos. 1-3.
15. Defendant Tuttle has not been declared non-compos mentis by this Court, and
through their filings, Defendant Tuttle’s attorneys are proceeding as if he is competent. To the
extent his affairs are being handled by a power of attorney, next friend, trustee or other surrogate,
that person should be required to respond to the specific and limited discovery requests. Moreover,
Defendant Tuttle’s emails should be available through HGEC. According to the Secretary of State
filings, Defendant Tuttle served as President and CEO of HGEC from June 19, 2015 through
January 11, 2016, and he served as Vice-Chairman of the Board for most of 2015, and then again
17
Defendant Tuttle’s Counsel contends that Defendants filed and served their Motion to Dismiss on February 18,
2019. If that is accurate, then the 120th day is June 18, 2019, still leaving ample time for Defendants to respond to
discovery.
8
from the end of 2016 through early 2019. Defendant Tuttle cannot seek the benefits of the TCPA
while simultaneously using his health condition as a shield from TCPA discovery.
F. Mr. Ehrman’s incarceration for fraud should not prevent his deposition.
16. The Ehrman Defendant’s most disingenuous argument is that Defendant Ehrman
cannot be deposed, that the request is “objectionable” because he is in prison, and that Plaintiffs
have not done enough to secure his deposition. This is laughable. Plaintiffs requested his
deposition on April 22, 2019, and Ehrman’s counsel refused. Ehrman’s TCPA Motion suspended
discovery so Plaintiffs literally cannot do anything more than they have done. According to
Defendant Ehrman’s logic he should be exempt from discovery in a civil fraud case because he is
in prison for criminal fraud; Plaintiffs’ case should be immediately dismissed under the TCPA;
and Plaintiffs should have to pay for his attorneys’ fees. Furthermore, Defendant Ehrman’s
testimony will enable Plaintiffs to establish a prima facie case for each of the causes of action
pleaded. Once under oath, Defendant Ehrman has three options: 1) he can tell the truth, 2) he can
lie, 3) or he can exercise his right against self-incrimination under the 5th Amendment. Any of
those outcomes would lead to prima facie evidence for the pleaded causes of action. 18 Plaintiffs
should be able to secure a deposition of Mr. Ehrman before the deadline if this Court orders it. It
was Defendant Ehrman’s choice, not Plaintiffs’, to file a TCPA Motion to Dismiss, and he, like
Defendant Tuttle, should be required to comply with all of its provisions. Justice and fairness
demand it.
PRAYER
For these reasons, and for the reasons set forth in their Emergency Motion, Plaintiffs
respectfully seek specified and limited discovery per TEX. CIV. PRAC. & REM. CODE § 27.006(b),
18
See TEX. R. E VID. 513(c) and Texas DPS Officers Ass’n v. Denton, 897 S.W.2d 757, 760 (Tex. 1995)(“Juries in
civil cases may make negative inferences based upon the assertion of the privilege [against self-incrimination].
9
that the TCPA hearing be continued until on or before June 18, 2019, and that the Court grant all
other relief to which Plaintiffs are entitled.
Respectfully submitted,
HENNEMAN RAU LLP
By: /s/ Bradley M. Kirklin
Bradley M. Kirklin
State Bar No. 24046222
bkirklin@hennemanrau.com
Laura L. Sammons
State Bar No. 24065446
lsammons@hennemanrau.com
815 Walker Street, Suite 1440
Houston, Texas 77002
(713) 955-6030 Telephone
(713) 955-6141 Facsimile
MCCATHERN, PLLC
Brett M. Chisum
State Bar No. 24082816
bchisum@mccathernlaw.com
Doni Mazaheri
State Bar No. 24110864
dmazaheri@mccathernlaw.com
Farbod Farnia
State Bar No. 24078493
3710 Rawlins, Suite 1600
Dallas, Texas 75219
(214) 741-2662 Telephone
(214) 741-4717 Facsimile
ATTORNEYS FOR PLAINTIFFS
PUSH START INDUSTRIES, LLC AND
ORGAN MOUNTAIN ENERGY, LLC
10
CERTIFICATE OF SERVICE
This will certify that a true and correct copy of the foregoing instrument was served in
accordance with Rule 21a of the Texas Rules of Civil Procedure upon the counsel of record below,
on this 2nd day of May, 2019.
Bret Strong Via EService
Laura F. Dumas
The Strong Firm P.C.
1790 Hughes Landing, Suite 200
The Woodlands, Texas 77380
bstrong@thestrongfirm.com
ldumas@thestrongfirm.com
Attorneys for Defendants
Houston Gulf Energy Corporation,
Jack Tompkins, Paul Bornstein,
and John Ehrman
Noah Meek Via EService
Suzan Cardwell
Cardwell & Chang, PLLC
511 Lovett Blvd.
Houston, Texas 77006
meek@cardwellchang.com
cardwell@cardwellchang.com
Attorneys for Defendant
Phillip A. Tuttle
/s/ Bradley M. Kirklin
11
Preview
Received and E-Filed for Record 5/2/2019 1:42 PM Melisa Miller, District Clerk Montgomery County, Texas Deputy Clerk, Megan Shiflett CAUSE NO. 19-03-04392 PUSH START INDUSTRIES, LLC, & § IN THE DISTRICT COURT OF ORGAN MOUNTAIN ENERGY, LLC § § Plaintiffs, § § v. § § MONTGOMERY COUNTY, TEXAS HOUSTON GULF ENERGY § CORPORATION, JACK TOMPKINS, § ANDREW LEVY, PHIL TUTTLE, § PAUL BORNSTEIN, AND JOHN § EHRMAN § § 284TH JUDICIAL DISTRICT Defendants. PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSES IN OPPOSITION TO PLAINTIFFS’ MOTION FOR EXPEDITED DISCOVERY Plaintiffs file this Reply to both Defendant Tuttle’s and the Ehrman Defendants’ Responses in Opposition to Plaintiffs’ Motion for Expedited Discovery, and would respectfully show that civil litigation is meant to uncover the truth, not hide it. Defendants’ Responses confirm that their primary objective is obfuscation at all costs through irrelevant procedural arguments in their continuing brazen attempt to complete their fraud and conspiracy at Plaintiffs’ expense. A. The discovery sought will likely show that Defendant Ehrman controlled HGEC from 2014 through 2018, that all of the Defendants knew it, and that they all concealed that information from Plaintiffs, to Plaintiffs’ detriment. 1. Perhaps the most telling omission from Defendants’ Responses is that neither deny that Defendant Ehrman is a fraudster (because he is), or that all of the individual Defendants were intimately associated with Ehrman at Houston Gulf Energy Corporation (“HGEC”) from 2015 through 2018 (because they were). For Defendants to argue that requested discovery is “immaterial,” “unwarranted” and “objectionable,” is facially absurd. Attached hereto are eleven HGEC Certificates of Amendment, filed by HGEC under penalty of perjury with the Texas the discovery seeks to answer that question. The discovery sought is relevant because during this time it was almost certainly Ehrman controlling HGEC, when HGEC, under penalty of perjury, was telling Plaintiffs and the rest of the world, that he was not. 3. The discovery sought will also explain why John Thibeaux, a person whom HGEC thrice banished from the company in 2016, signed the Second Finders’ Fee Agreement as HGEC’s CEO on March 2, 2017. 4 According to the Texas Secretary of State’s filings, on March 2, 2017 Defendant Bornstein was CEO, and Thibeaux was not associated with HGEC. Yet the signature blocks on the Second Finders’ Fee Agreement are as follows: 4. Even more inexplicable is the Ehrman Defendants’ Response, wherein Bornstein’s own lawyer twice claims that Bornstein never signed the Second Finders’ Fee Agreement: “[P]laintiffs alleged claims for fraud relate to a) an alleged March 2017 Finder’s Fee Agreement, 4 The March 2, 2017, Finders’ Fee Agreement (“Second Finders’ Fee Agreement”) is attached as Exhibit B. (Emphasis added.) 3 that was not signed by any of the individual defendants…” 5 See directly above. Is that not Defendant Bornstein’s signature? If not, whose signature is it? 5. Concerning the Second Finder’s Fee Agreement, there is considerable confusion over who signed it on behalf of HGEC. On March 23, 2017, “John” informs Plaintiffs’ principal, Dennis Rogers, that “Paul” would sign a new Finders’ Fee Agreement if that is “what [Rogers] wanted.” 6 Of course based on Defendant Bornstein’s supposed signature (see above), Rogers naturally thought Defendant Bornstein had already signed the Second Finders’ Fee Agreement. Rogers responds to “John,” inquiring: “Did he (Paul Bornstein) not sign this agreement?” 7 6. At this point, both Bornstein and “John” (probably Ehrman masquerading as Thibeaux) assure Rogers that Bornstein did sign the Second Finders’ Fee Agreement: From john@hgecorp: “Paul did sign and thus we are bound and have been paying. If there 8 were skullduggery you would not have been paid. Paul is the President.” From pabornstein@aol.com: “I recall signing the doc and sending iy (sic) back to you John.” 9 So who did sign the Second Finder’s Fee Agreement? Was it Bornstein? Was it Thibeaux? If it was Thibeaux who was no longer associated with HGEC in “any capacity,” why? 10 Was it Ehrman pretending to be Thibeaux? Was is it Ehrman pretending to be Bornstein? Apparently, not even Bornstein’s and Ehrman’s counsel knows the story, but nonetheless unequivocally twice takes the position that the above signature is not Defendant Bornstein’s. Another question presented: if Bornstein was president as “John” claims in his March 23, 2017 email and as the Secretary of 5 (Emphasis added.) Ehrman Defendants’ Response, 2. See also Ehrman Defendants’ Response, 6 (“Furthermore, none of the requested discovery will enable Plaintiffs to overcome the statute of frauds defense to the Finder’s Fee that was not signed by any of the individual defendants.”)(Emphasis added.) 6 The March 23, 2017 email is attached as Exhibit C. Each of these representations were made directly to Plaintiff’s principal, Mr. Rogers. 7 Id. 8 Id. 9 Id. 10 Certificate of Amendment filed December 13, 2016, attached at Exhibit A. 4 State’s filings show, why did Bornstein sign the Second Finders’ Fee Agreement as a “Director,” and not as President? 11 The discovery sought, including the deposition of Ehrman, should solve all of these mysteries, and it is indisputably relevant to Plaintiffs’ causes of action. B. Defendants’ claim that “no amount of discovery” would support Plaintiffs’ causes of action is untrue. 7. While simultaneously refusing to provide discovery, Defendants take the convenient position that the Plaintiffs cannot prevail even if the discovery sought were produced. To support this logical leap, Defendants argue that statute of frauds prevents recovery based on the Second Finders’ Fee Agreement (which according to Defendant Bornstein’s lawyer, Bornstein did not sign), and that two emails (one in October 2015 and the other in January 2017) show that Plaintiffs cannot meet the justifiable reliance element of fraud. These arguments are ludicrous. 8. With respect to the statute of frauds argument, in their Response to Defendants’ TCPA Motions, Plaintiffs will show that the statute of frauds is wholly inapplicable. With respect to the “justifiable reliance” argument, it is not the role of the court to make a summary determination of justifiable reliance based on two emails (which are taken out of context) before discovery even commences, and itis not the role of a defendant to conclude that no amount of discovery could support a plaintiff’s causes of action without actually producing the discovery. The discovery sought should uncover “who knew what and when.” And as shown above, Plaintiffs, with good reason, believe that the discovery will show that all of the named Defendants knew Ehrman controlled HGEC during all relevant times, and that they intentionally concealed that fact from Plaintiffs. That is evidence of fraud and conspiracy. 9. To more specifically rebut Defendants’ arguments, Plaintiffs do not deny that by the September 21, 2017 Board Resolution (“Board Resolution”) they had uncovered Ehrman’s 11 Id. 5 identity. 12 It was during this time that Plaintiffs were assured by HGEC and its Board that Ehrman, though associated with HGEC, was not materially involved in HGEC’s day-to-day operations. The Board Resolution, wherein Defendants Tomkins, Levy, Bornstein and Tuttle all attest that they are aware of Defendant Ehrman’s “background issues” and affirm his allegedly non- controlling position as “Director of Special Projects,” was ostensibly drafted and signed to allay Plaintiffs’ concerns. 13 10. Indeed, to further entice Plaintiffs to continue doing business with HGEC, the Board Resolution approved the sale of 6% of the Incartus Galveston Joint Venture to Plaintiff Organ Mountain LLC (the “sale” was going to be in the form of an assignment of HGEC’s 6% interest in the joint venture to Organ Mountain). 14 Thus, the two emails cited by Defendants have no bearing on the their defenses (other than the first is evidence that Defendant Ehrman was illegally running the company when Defendant Tuttle was the designated President/CEO, and the second is evidence that HGEC was not paying Plaintiffs). The discovery sought will uncover the communications between the Defendants both before and after the Board Resolution, which is certainly relevant to Plaintiffs’ causes of action, and will likely show the Board Resolution was a sham, and that Defendant Ehrman always operated HGEC during the relevant time periods. 15 12 The Board Resolution is attached as Exhibit D. 13 Id. 14 Id. 15 That Defendants make a “justifiable reliance” argument is a tacit admission that Plaintiffs have met their burden to provide prima facie evidence of their fraud cases because Defendants are attempting to rebut the justifiable reliance element for fraud. The TCPA does not require the Plaintiffs provide evidence sufficient to prove their case by a preponderance of the evidence on the merits, it requires only prima facie evidence or “evidence sufficient as a matter of law to establish a given fact if it is not rebutted or contradicted.” In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015) (emphasis added). 6 C. Plaintiffs immediately sought discovery after retaining new counsel well within the time constructs provided for by the TCPA. 11. The Dallas County court transferred the case to this Court on or about March 27, 2019. After the transfer, on April 17, 2019, Plaintiffs sought and retained counsel in closer proximity to Montgomery County, Texas to serve as their lead counsel. Per the TCPA, Plaintiffs’ new counsel immediately sought limited discovery on April 22, 2019, two business days after being retained, and some 57 days before June 18, 2019. 16 12. The fact that Plaintiffs did not seek discovery in Dallas County is irrelevant. Lawyers in different venues make tactical and strategic decisions for many different, legitimate reasons. More importantly, that Plaintiffs now seek limited discovery in no way prejudices the Defendants – the statute provides for such discovery in the time period in which it is sought. TEX. CIV. PRAC. & REM. CODE § 27.006(b). Moreover, in a typical case, Defendants would be required to respond to unlimited requests for production and requests for admission, and 25 interrogatories within 30 days. In this instance, Plaintiffs sought tailored discovery: one request for admission, one interrogatory, eight requests for production (three of which Defendant Tuttle voluntarily answered), and one limited deposition, and provided Defendants with more than 50 days to respond. D. The TCPA provides the Court express authority to extend the hearing date 120 days after the Motion is served. No attorney verification is necessary. 13. TEX. CIV. PRAC. & REM CODE § 27.004(c) provides the Court express authority to hold a TCPA hearing 120 days after its service: If the court allows discovery under Section 27.006(b), the court may extend the hearing date to allow discovery under that subsection, but in no event shall the hearing occur more than 120 days after the service of the motion under Section 27.003. 16 The Affidavit of Bradley M. Kirklin is attached as Exhibit E. 7 Thus, Plaintiffs “verification” argument is moot. The Court does not need counsel’s verification to continue the hearing to June 18, 2019. 17 That much of Defendants’ argument focuses on an irrelevant verification is indicative of Defendants’ efforts to conceal the truth. Regardless, Plaintiffs’ counsel’s verification is attached as Exhibit E, which cures the issue. E. Defendant Tuttle’s health has not prevented him from filing his TCPA Motion to Dismiss, and therefore it should not prevent him from complying with TCPA discovery. 14. While Defendant Tuttle’s health situation is certainly unfortunate, it does not negate his duty to provide the requested discovery. Indeed, this is further evidence of Defendant Tuttle (or his lawyers) seeking to have it both ways. If Defendant Tuttle is competent enough to direct his counsel to file a Motion to Dismiss and a Motion to Transfer Venue, fundamental fairness requires that he be required to comply with the rule requiring responses to specific and limited discovery. In fact, Mr. Tuttle (or his lawyers) voluntarily responded to Requests for Production Nos. 1-3. 15. Defendant Tuttle has not been declared non-compos mentis by this Court, and through their filings, Defendant Tuttle’s attorneys are proceeding as if he is competent. To the extent his affairs are being handled by a power of attorney, next friend, trustee or other surrogate, that person should be required to respond to the specific and limited discovery requests. Moreover, Defendant Tuttle’s emails should be available through HGEC. According to the Secretary of State filings, Defendant Tuttle served as President and CEO of HGEC from June 19, 2015 through January 11, 2016, and he served as Vice-Chairman of the Board for most of 2015, and then again 17 Defendant Tuttle’s Counsel contends that Defendants filed and served their Motion to Dismiss on February 18, 2019. If that is accurate, then the 120th day is June 18, 2019, still leaving ample time for Defendants to respond to discovery. 8 from the end of 2016 through early 2019. Defendant Tuttle cannot seek the benefits of the TCPA while simultaneously using his health condition as a shield from TCPA discovery. F. Mr. Ehrman’s incarceration for fraud should not prevent his deposition. 16. The Ehrman Defendant’s most disingenuous argument is that Defendant Ehrman cannot be deposed, that the request is “objectionable” because he is in prison, and that Plaintiffs have not done enough to secure his deposition. This is laughable. Plaintiffs requested his deposition on April 22, 2019, and Ehrman’s counsel refused. Ehrman’s TCPA Motion suspended discovery so Plaintiffs literally cannot do anything more than they have done. According to Defendant Ehrman’s logic he should be exempt from discovery in a civil fraud case because he is in prison for criminal fraud; Plaintiffs’ case should be immediately dismissed under the TCPA; and Plaintiffs should have to pay for his attorneys’ fees. Furthermore, Defendant Ehrman’s testimony will enable Plaintiffs to establish a prima facie case for each of the causes of action pleaded. Once under oath, Defendant Ehrman has three options: 1) he can tell the truth, 2) he can lie, 3) or he can exercise his right against self-incrimination under the 5th Amendment. Any of those outcomes would lead to prima facie evidence for the pleaded causes of action. 18 Plaintiffs should be able to secure a deposition of Mr. Ehrman before the deadline if this Court orders it. It was Defendant Ehrman’s choice, not Plaintiffs’, to file a TCPA Motion to Dismiss, and he, like Defendant Tuttle, should be required to comply with all of its provisions. Justice and fairness demand it. PRAYER For these reasons, and for the reasons set forth in their Emergency Motion, Plaintiffs respectfully seek specified and limited discovery per TEX. CIV. PRAC. & REM. CODE § 27.006(b), 18 See TEX. R. E VID. 513(c) and Texas DPS Officers Ass’n v. Denton, 897 S.W.2d 757, 760 (Tex. 1995)(“Juries in civil cases may make negative inferences based upon the assertion of the privilege [against self-incrimination]. 9 that the TCPA hearing be continued until on or before June 18, 2019, and that the Court grant all other relief to which Plaintiffs are entitled. Respectfully submitted, HENNEMAN RAU LLP By: /s/ Bradley M. Kirklin Bradley M. Kirklin State Bar No. 24046222 bkirklin@hennemanrau.com Laura L. Sammons State Bar No. 24065446 lsammons@hennemanrau.com 815 Walker Street, Suite 1440 Houston, Texas 77002 (713) 955-6030 Telephone (713) 955-6141 Facsimile MCCATHERN, PLLC Brett M. Chisum State Bar No. 24082816 bchisum@mccathernlaw.com Doni Mazaheri State Bar No. 24110864 dmazaheri@mccathernlaw.com Farbod Farnia State Bar No. 24078493 3710 Rawlins, Suite 1600 Dallas, Texas 75219 (214) 741-2662 Telephone (214) 741-4717 Facsimile ATTORNEYS FOR PLAINTIFFS PUSH START INDUSTRIES, LLC AND ORGAN MOUNTAIN ENERGY, LLC 10 CERTIFICATE OF SERVICE This will certify that a true and correct copy of the foregoing instrument was served in accordance with Rule 21a of the Texas Rules of Civil Procedure upon the counsel of record below, on this 2nd day of May, 2019. Bret Strong Via EService Laura F. Dumas The Strong Firm P.C. 1790 Hughes Landing, Suite 200 The Woodlands, Texas 77380 bstrong@thestrongfirm.com ldumas@thestrongfirm.com Attorneys for Defendants Houston Gulf Energy Corporation, Jack Tompkins, Paul Bornstein, and John Ehrman Noah Meek Via EService Suzan Cardwell Cardwell & Chang, PLLC 511 Lovett Blvd. Houston, Texas 77006 meek@cardwellchang.com cardwell@cardwellchang.com Attorneys for Defendant Phillip A. Tuttle /s/ Bradley M. Kirklin 11