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CAUSE NO. 2010-63264
IN THE DISTRICT COURT
CADENCE BANK.
fik/a ENCORE BANK
Plaintiff,
v OF HARRIS COUNTY, TEXAS
ALLEN L. BERRY;
JOSEPH D, MCCORD;
and ROBERT G. TAYLOR, IJ,
Defendants. 152™ JUDICIAL DISTRICT
PLAINTIFF'S OBJECTION AND MOTION TO STRIKE DEFENDANTS?
COMBINED RESPONSE TO PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT
Plaintiff Cadence Bank f/k/a Encore Bank (“Encore”) files this Objection and Motion to
Strike Defendants’ Combined Response to Plaintiff's Motions for Summary Judgment, and
respectfully shows the Court as follows:
qT OVERVIEW
1 Despite having two months to draft a concise, well-reasoned response to Encore’s
motions for summary judgment, Defendants instead filed a 159 page behemoth that is long on
prose but short on substance. Instead of specifically identifying fact issues, Defendants’
Response swamps the Court with paper in hopes the Court will simply assume a fact issue exists
somewhere and deny summary judgment.
2 Because Defendants’ Response is improperly crafted to deprive Encore of having
its claims heard by the Court via summary judgment, Encore requests the Court strike the
Response.
I. ARGUMENTS & AUTHORITIES
A Defendants’ Response Fails to Identify Specific Fact Issues and Improperly Cites
Voluminous Record
3 Defendants’ 159 page argument and more than one thousand pages of exhibits
cited in Response to Encore’s succinct Motions for Summary Judgment is nothing more than
blatant harassment. In their voluminous Response, Defendants incorporate lengthy affidavits
verbatim, attempt to incorporate all depositions, pleadings, and exhibits in this case and several
other cases, and otherwise obscure their arguments by inundating both the Court and Encore with
paper. Clearly, it is Defendants’ strategy that this Court will be unable to sift through thousands
of pages of a conclusively cited record in order to grant Encore’s Motions for Summary
Judgment.
4 Defendants’ Response fails to cite, quote or otherwise point out to the Court the
specific evidence, exhibits, or testimony they rely on to create a fact issue. Instead, Defendants
generally cite to voluminous summary judgment evidence in the record. But “[a] general
reference to a voluminous record that does not direct the trial court and parties to the evidence on
which the movant relies is insufficient to raise an issue of fact to defeat summary judgment.”
Bich Ngoc Nguyen vy. Allstate Ins. Co., 404 S.W.3d 770, 776 (Tex. App.—-Dallas 2013, no pet.)
(citing Leija v. Laredo Cmty, Coll., No, 04-10-00410, 2011 WL 1499330, at *5 (Tex. App.—San
Antonio, Apr. 20, 2011, no pet.) (mem. op.) (same), Kastner v. Gutter Mgmt. Inc., No, 14-09-
00055-CV, 2010 WL 4457461, at *3 (Tex. App.—-Houston [14th Dist.] Nov. 4, 2010, pet.
denied) (mem. op.) (“Blanket citation to voluminous records is not a proper response to a no-
evidence motion for summary judgment.”)). “In the absence of any guidance from the non-
movant where the evidence can be found, the trial and appellate courts are not required to sift
through voluminous deposition transcriptions in search of evidence to support the non-movant’s
argument that a fact issue exists.” Aguilar v. Trujillo, 162 S.W.3d 829, 838 (Tex. App—El Paso
2005, pet. denied) (citing White Oak Bend Mun. Util. Dist. v. Robertson, No. 14-00-00155-CV,
2002 WL 245957, at *5 n.2 (Tex. App—Houston [14th Dist.] Feb. 21, 2002, pet. denied);
Guthrie v. Suiter, 934 $.W.2d 820, 826 (Tex. App——Houston [lst Dist.] 1996, no writ).
Therefore, “a party submitting summary judgment evidence ‘must specifically identify the
supporting proof on file that it seeks to have considered by the trial court. oe Bich Ngoc Nguyen,
404 S.W.3d at 776 (quoting Arredondo v. Rodriguez, 198 S.W.3d 236, 238 (Tex. App.—San
Antonio 2006, no pet.)).
5 Here, Defendants’ Response is no more than a disorderly accumulation of every
affidavit, deposition, and exhibit in the record of this case, as well as other cases. For example
Defendants’ Response generally cites the following as “Summary Judgment Evidence”:
Defendants further rely upon the following documents, which may be on file with
the Court as follows:
1 All pleadings, discovery, motions, teply briefs, response _ briefs,
correspondence, or other matters served between the parties or filed
throughout the course of this case and the Alabama Lawsuit, Galveston
Lawsuit, Houston Lawsuit, and Corpus Christi Bankraptey Law suit;
2 Affidavits from the parties, witnesses, and/or experts; and
3 Any deposition testimony taken in this case,
Response at 19. Further, Defendants’ Response includes pages of single-spaced affidavits
without any explanation as to what portion of the affidavit is relevant to Defendants’ argument.
Defendants’ conclusory Response—citing to every page in the record hoping to drum-up a fact
issue—has been repeatedly rejected as inappropriate by Texas Courts. See, e.g, Aguilar, 162
S.W.3d at 838.
B. The Court Should Strike Defendants’ Response
6 Further, Chapter 9 of the Texas Civil Practice and Remedies Code provides a
remedy for Defendants’ harassing Response. It allows the trial court to impose sanctions on a
party for filing bad faith pleadings. See Tex. Civ, Prac. & Rem. Code § 9.012(c). A
sarictionable offense occurs when a party or its counsel violates the rule that, to the best
knowledge, information, and belief of the signatory, the pleading is not groundless, brought in
bad faith, brought for purpose of harassment, or interposed for any improper purpose, such as to
cause unnecessary delay. See Tex, Civ. Prac. & Rem. Code § 9.011. The court’s sanction may
include striking the pleading or the offending portion thereof. See Tex. Civ. Prac. & Rem. Code
§ 9.012(d).
7 Here, Defendants’ 159 page Response was undoubtedly brought for purposes of
harassment as it is a thinly-veiled attempt to prevent the Court’s consideration of Encore’s
dispositive Motions. Defendants’ Response fails to address the key issues raised by Encore’s
Motions or to succinctly cite evidence in the record to support its arguments. To put it simply,
Defendants’ Response is nothing more than an “everything but the kitchen sink” motion that
lacks specific factual allegations and the incorporation of relevant evidence.
8 Because Defendants’ Response is improperly crafted to deprive Encore of having
its claims heard by the Court via summary judgment, Encore requests the Court strike the
Response.
ILL PRAYER
9 For these reasons, Plaintiff Cadence Bank f/k/a Encore Bank asks the Court to
strike Defendants’ Combined Response to Plaintiffs Motions for Summary Judgment, and for
all other relief to which it may be entitled.
Respectfully submitted,
DOBROWSKI, LARKIN & JOHNSON L.L.P.
By ¢s/ Cody W. Stafford
Paul J. Dobrowski
SBN 05927100
pid@doblaw.com
Cody W, Stafford
SBN 24068238
estafford@doblaw,com
4601 Washington Avenue, Suite 300
Houston, Texas 77007
Telephone: (713) 659-2900
Facsimile: (713) 659-2908
ATTORNEYS FOR PLAINTIFF CADENCE
BANK f/k/a ENCORE BANK
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing has been served on all
counsel of record on this 6" day of January, 2014, by ECF filing and regular mail.
Jett Williams, TIT
Henke Law Firm, LLP
3200 Southwest Freeway, 34" Floor
Houston, Texas 77027
Robert G. Taylor, TIT
Law Office of Robert G. Taylor, IIT
4119 Montrose, Suite 400
Houston, Texas 77006
James E, “Jeb” Brown, IL
3100 Edloe Street, Suite 220
Houston, Texas 77027
Jerry S. Payne
616 Voss Road
Hunters Creek Village, Texas 77024
sf Cody W. Stafford
Cody W, Stafford
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CAUSE NO. 2010-63264 IN THE DISTRICT COURT CADENCE BANK. fik/a ENCORE BANK Plaintiff, v OF HARRIS COUNTY, TEXAS ALLEN L. BERRY; JOSEPH D, MCCORD; and ROBERT G. TAYLOR, IJ, Defendants. 152™ JUDICIAL DISTRICT PLAINTIFF'S OBJECTION AND MOTION TO STRIKE DEFENDANTS? COMBINED RESPONSE TO PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT Plaintiff Cadence Bank f/k/a Encore Bank (“Encore”) files this Objection and Motion to Strike Defendants’ Combined Response to Plaintiff's Motions for Summary Judgment, and respectfully shows the Court as follows: qT OVERVIEW 1 Despite having two months to draft a concise, well-reasoned response to Encore’s motions for summary judgment, Defendants instead filed a 159 page behemoth that is long on prose but short on substance. Instead of specifically identifying fact issues, Defendants’ Response swamps the Court with paper in hopes the Court will simply assume a fact issue exists somewhere and deny summary judgment. 2 Because Defendants’ Response is improperly crafted to deprive Encore of having its claims heard by the Court via summary judgment, Encore requests the Court strike the Response. I. ARGUMENTS & AUTHORITIES A Defendants’ Response Fails to Identify Specific Fact Issues and Improperly Cites Voluminous Record 3 Defendants’ 159 page argument and more than one thousand pages of exhibits cited in Response to Encore’s succinct Motions for Summary Judgment is nothing more than blatant harassment. In their voluminous Response, Defendants incorporate lengthy affidavits verbatim, attempt to incorporate all depositions, pleadings, and exhibits in this case and several other cases, and otherwise obscure their arguments by inundating both the Court and Encore with paper. Clearly, it is Defendants’ strategy that this Court will be unable to sift through thousands of pages of a conclusively cited record in order to grant Encore’s Motions for Summary Judgment. 4 Defendants’ Response fails to cite, quote or otherwise point out to the Court the specific evidence, exhibits, or testimony they rely on to create a fact issue. Instead, Defendants generally cite to voluminous summary judgment evidence in the record. But “[a] general reference to a voluminous record that does not direct the trial court and parties to the evidence on which the movant relies is insufficient to raise an issue of fact to defeat summary judgment.” Bich Ngoc Nguyen vy. Allstate Ins. Co., 404 S.W.3d 770, 776 (Tex. App.—-Dallas 2013, no pet.) (citing Leija v. Laredo Cmty, Coll., No, 04-10-00410, 2011 WL 1499330, at *5 (Tex. App.—San Antonio, Apr. 20, 2011, no pet.) (mem. op.) (same), Kastner v. Gutter Mgmt. Inc., No, 14-09- 00055-CV, 2010 WL 4457461, at *3 (Tex. App.—-Houston [14th Dist.] Nov. 4, 2010, pet. denied) (mem. op.) (“Blanket citation to voluminous records is not a proper response to a no- evidence motion for summary judgment.”)). “In the absence of any guidance from the non- movant where the evidence can be found, the trial and appellate courts are not required to sift through voluminous deposition transcriptions in search of evidence to support the non-movant’s argument that a fact issue exists.” Aguilar v. Trujillo, 162 S.W.3d 829, 838 (Tex. App—El Paso 2005, pet. denied) (citing White Oak Bend Mun. Util. Dist. v. Robertson, No. 14-00-00155-CV, 2002 WL 245957, at *5 n.2 (Tex. App—Houston [14th Dist.] Feb. 21, 2002, pet. denied); Guthrie v. Suiter, 934 $.W.2d 820, 826 (Tex. App——Houston [lst Dist.] 1996, no writ). Therefore, “a party submitting summary judgment evidence ‘must specifically identify the supporting proof on file that it seeks to have considered by the trial court. oe Bich Ngoc Nguyen, 404 S.W.3d at 776 (quoting Arredondo v. Rodriguez, 198 S.W.3d 236, 238 (Tex. App.—San Antonio 2006, no pet.)). 5 Here, Defendants’ Response is no more than a disorderly accumulation of every affidavit, deposition, and exhibit in the record of this case, as well as other cases. For example Defendants’ Response generally cites the following as “Summary Judgment Evidence”: Defendants further rely upon the following documents, which may be on file with the Court as follows: 1 All pleadings, discovery, motions, teply briefs, response _ briefs, correspondence, or other matters served between the parties or filed throughout the course of this case and the Alabama Lawsuit, Galveston Lawsuit, Houston Lawsuit, and Corpus Christi Bankraptey Law suit; 2 Affidavits from the parties, witnesses, and/or experts; and 3 Any deposition testimony taken in this case, Response at 19. Further, Defendants’ Response includes pages of single-spaced affidavits without any explanation as to what portion of the affidavit is relevant to Defendants’ argument. Defendants’ conclusory Response—citing to every page in the record hoping to drum-up a fact issue—has been repeatedly rejected as inappropriate by Texas Courts. See, e.g, Aguilar, 162 S.W.3d at 838. B. The Court Should Strike Defendants’ Response 6 Further, Chapter 9 of the Texas Civil Practice and Remedies Code provides a remedy for Defendants’ harassing Response. It allows the trial court to impose sanctions on a party for filing bad faith pleadings. See Tex. Civ, Prac. & Rem. Code § 9.012(c). A sarictionable offense occurs when a party or its counsel violates the rule that, to the best knowledge, information, and belief of the signatory, the pleading is not groundless, brought in bad faith, brought for purpose of harassment, or interposed for any improper purpose, such as to cause unnecessary delay. See Tex, Civ. Prac. & Rem. Code § 9.011. The court’s sanction may include striking the pleading or the offending portion thereof. See Tex. Civ. Prac. & Rem. Code § 9.012(d). 7 Here, Defendants’ 159 page Response was undoubtedly brought for purposes of harassment as it is a thinly-veiled attempt to prevent the Court’s consideration of Encore’s dispositive Motions. Defendants’ Response fails to address the key issues raised by Encore’s Motions or to succinctly cite evidence in the record to support its arguments. To put it simply, Defendants’ Response is nothing more than an “everything but the kitchen sink” motion that lacks specific factual allegations and the incorporation of relevant evidence. 8 Because Defendants’ Response is improperly crafted to deprive Encore of having its claims heard by the Court via summary judgment, Encore requests the Court strike the Response. ILL PRAYER 9 For these reasons, Plaintiff Cadence Bank f/k/a Encore Bank asks the Court to strike Defendants’ Combined Response to Plaintiffs Motions for Summary Judgment, and for all other relief to which it may be entitled. Respectfully submitted, DOBROWSKI, LARKIN & JOHNSON L.L.P. By ¢s/ Cody W. Stafford Paul J. Dobrowski SBN 05927100 pid@doblaw.com Cody W, Stafford SBN 24068238 estafford@doblaw,com 4601 Washington Avenue, Suite 300 Houston, Texas 77007 Telephone: (713) 659-2900 Facsimile: (713) 659-2908 ATTORNEYS FOR PLAINTIFF CADENCE BANK f/k/a ENCORE BANK CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been served on all counsel of record on this 6" day of January, 2014, by ECF filing and regular mail. Jett Williams, TIT Henke Law Firm, LLP 3200 Southwest Freeway, 34" Floor Houston, Texas 77027 Robert G. Taylor, TIT Law Office of Robert G. Taylor, IIT 4119 Montrose, Suite 400 Houston, Texas 77006 James E, “Jeb” Brown, IL 3100 Edloe Street, Suite 220 Houston, Texas 77027 Jerry S. Payne 616 Voss Road Hunters Creek Village, Texas 77024 sf Cody W. Stafford Cody W, Stafford