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CARRIER ENTERPRISE, LLC IN THE DISTRICT COURT
Plaintiff,
125TH JUDICIAL DISTRICT
CAPITAL AIR & HEAT, LTD.,
LAWRENCE J. ROMEO AND
ROMEO VENTURES, INC.
Defendants. OF HARRIS COUNTY, TEXAS
DEFENDANTS/COUNTER PLAINTIFFS
MOTION FOR CONTINUAN
Comes now, Defendants/Counter Plaintiffs Capital Air & Heat, Ltd. (“Capital Air”)
Lawrence J. Romeo (“Romeo”), and Romeo Ventures, Inc. (collectively, the “Defendants”) and
asks the Court to continue the hearing on Plaintiff Carrier Enterprise LLC’s (“Plaintiff” or
“Carrier”) Motion for No Evidence Summary Judgment on Defendants’ counterclaims because
additional time is needed to obtain discovery, including the conducting important deposition
on the day of the response deadline and day after the response deadline and the reviewing
of such transcripts and updating any response evidence
INTRODUCTION
Plaintiff Carrier sued Defendants Capital Air, Romeo, and Romeo Ventures for
breach of contract for failure to pay certain invoices from Plaintiff for the purchase of HVAC
equipment from Plaintiff. Romeo Ventures is the general partner of Defendant Capital Air,
and Romeo is the alleged guarantor of the trade account. Romeo has challenged the validity
of the personal guaranty.
Defendant Romeo and Capital Air have filed counterclaims for, among other
things, business disparagement and for tortious interference with a contract. Capital Air had
contractual arrangements with Anglia Homes, LP, Design Tech Homes, and Shea Homes.
These companies are also customers of Plaintiff. Plaintiff’s former employee Brian LaCour,
who was a sales supervisor with supervisory duties over Capital Air’s credit account,
contacted these three builders regarding Capital Air’s business. In his contact with the
builders, he made derogatory comments regarding Capital Air, which information
discouraged the builders from continuing their business with Capital Air. Indeed, each
builder terminated its contract with Capital Air.
BACKGROUND
3. On March 29, 2018, Plaintiff filed a no-evidence motion for summary judgment
against Defendants/Counter-Plaintiffs for their counterclaims for tortious interference with a
contract and tortious interference with a prospective business relationship.
Defendants/Counter-Plaintiffs amended their counterclaims on April 9, 2018 to remove the
tortious interference claim, because Capital Air had actual contracts and business with each
of the three builders, and to add a claim for business disparagement.
4. The hearing for Plaintiff’s motion is set for submission on April 16, 2018.
5. Defendant/Counter-Plaintiff attaches the following affidavits and discovery
products as Exhibits in support of the facts stated in this motion and incorporates the
evidence into this motion by reference:
Exhibit 1 Affidavit of Lawrence J. Romeo
Exhibit 2* Responses for Request for Admission
Exhibit 3* E-mails from LaCour to Design Tech
Exhibit 4* E-mails from LaCour to Anglia
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Exhibit 5* Romeo Discovery Excerpt
The use of these exhibits constitute notice from Defendants to Plaintiff for use of
Plaintiff’s discovery products.
CONTINUANCE TO OBTAIN ADDITIONAL DISCOVERY
7. Under Texas Rule of Civil Procedure 166a(g), a court can grant a continuance
of a summary judgment hearing if the party opposing summary judgment can establish by
affidavit or verified motion that it has not had an adequate time for discovery. Tenneco Inc.
v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). To seek a continuance under Rule
166a(g), the affidavit or verified motion must identify the evidence sought, explain why it is
material, and state with particularity the diligence used to obtain the evidence. West v. SMG,
318 S.W.3d 430, 443 (Tex. App.—Houston [1st Dist.] 2010, no pet.); Rocha v. Faltys, 69
S.W.3d 315, 319 (Tex. App.—Austin 2002, no pet.).
8. Rule 166a(g) does not require that a movant seeking a continuance of a
summary judgment hearing has to follow the procedure of Rule 252 governing the request
for additional testimony discovery. However, the Fort Worth Court of Appeals has held that
if the basis for continuance is the need to take additional depositions, the affidavit or verified
motion must also meet the additional requirements of Texas Rule of Civil Procedure 252.
See Tri-Steel Structures, Inc. v. Baptist Found., 166 S.W.3d 443, 448 (Tex. App.—Fort
Worth 2005, pet. denied); see also Gundermann v. Buehring, No. 13-05-278-CV (Tex.
App.—Corpus Christi 2006, pet. denied) (memo op.; 2-2-06). To meet the additional
requirements of Rule 252, the affidavit or verified motion must (1) explain the reasons for
not obtaining the discovery earlier, if known, and (2) show that the discovery cannot be
obtained from any other source if the party had previously applied for a continuance. Tex. R.
Civ. P. 252; see Mulcahy v. Wal-Mart Stores, Inc., No. 02-10-00074-CV (Tex. App.—Fort
Worth 2010, no pet.) (memo op.; 12-16-10); Gundermann, No. 13-05-278-CV (memo op.).
Rule 252 is part of Section 11 of the Texas Rules of Civil Procedure, “The Trial of Causes,”
while Rule 166a is part of Section 8, “Pretrial Procedure.” While Defendants understand that
the titles to rules and sections are generally for guidance and convenience only, and not for
construing the language or application of the rules, Defendants point to Rule 270, also a part
of Section 11, which states, “When it clearly appears to be necessary for the due
administration of justice, the court may permit additional evidence to be offered at any time.”
This rule even applies after a non-jury verdict. In Moore v. Jet Stream, the court reasoned
that in deciding whether to admit additional evidence, a trial court may consider “(1) whether
the movant showed due diligence in obtaining the evidence; (2) whether the additional
evidence is decisive; (3) whether reopening the evidence will cause undue delay; and (4)
whether reopening the evidence will cause injustice.” Moore v. Jet Stream Invs., 315 S.W.3d
195, 201 (Tex. App.—Texarkana 2010, pet denied).
9. If the affidavit or verified motion meets the requirements for a continuance, the
court should consider the following nonexclusive factors in deciding whether to grant the
motion under Rule 252: (1) the materiality and the purpose of the discovery sought,
(2) whether the party exercised due diligence, and (3) the length of time the case has been on
file. West, 318 S.W.3d at 443; see Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150,
161 (Tex. 2004). These requirements are similar to those factors in Moore, above.
A. Evidence sought.
10. Defendants need additional time to obtain the following evidence: (i) deposition
testimony from Angela Thurman, a former employee of Anglia Homes, whom Brian LaCour
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contacted; such deposition is scheduled for Tuesday, April 17, 2018 at 10 a.m, one day after
the response deadline to Plaintiff’s Motion for No Evidence Summary Judgment against
Defendant/Counter-Plaintiff’s counterclaim, but within the discovery period; (ii) Plaintiff’s
Responses to Defendants’ Second Request for Production, specifically regarding Brian
LaCour’s termination of employment and Plaintiff’s direct sales of HVAC equipment to
Capital Air’s customers, Anglia Homes, LP, Design Tech Homes, and Shea Homes, the very
customers who LaCour contacted and tortiously interfered with Defendant Capital Air’s
business; and (iii)deposition testimony from the appropriate Shea Homes and Design Tech
Homes representative to determine what they said to LaCour, what they were told, and for their
motivations for terminating business with Capital Air.
11. Plaintiff has admitted that LaCour is no longer employed by Plaintiff, but it
denies that his employment was terminated due to his alleged actions against Capital Air.
See Exhibit 2 (Responses to Request from Admissions). Deposition testimony would
provide evidence as to why he was terminated, from the point of view of LaCour, and
whether such termination was based on wrongful actions against Capital Air, again from his
point of view.
12. Defendants need further discovery responses which are pending from Plaintiff,
including requests for production regarding Plaintiff’s sales to the same builders which were
customers to Capital Air. It is generally known in the HVAC business that builders are
customers of the major HVAC suppliers via Carrier Enterprise’s provision of rebates to
builders. See Exhibit 1 (Romeo affidavit). Further, Plaintiff admits it. In Plaintiff’s
deposition of Defendant Romeo, Plaintiff’s counsel asked the following question:
“Okay. And do you realize—do you—do you understand that these builders are also
customers of Carriers as well?”
See Exhibit 5, Deposition of Romeo, page 79, Lines 5-10 (emphasis added). Romeo answered
yes. See id. at lines 8, 10. Defendants have asserted in their counterclaims that Plaintiff’s
employee Brian LaCour tortiously interfered with Defendant Capital Air’s contracts with
Anglia Homes, Shea Homes, and Design Tech Homes, and it so happens that Plaintiff also
sells HVAC equipment directly to such homebuilders. Discovery is necessary to determine the
amount of sales to these homebuilders and to determine the motivation for LaCour’s contact
with these builders, as Carrier had the incentive and opportunity to remove Capital Air from
business with these customers. Plaintiff Carrier Enterprise desired for these builders to
continue using Carrier equipment and providing its rebates, and LaCour’s actions were
designed to prevent Capital Air from acquiring Carrier equipment from another supplier
(United Air) or from other suppliers (such as Trane). See Exhibit 1 (Romeo affidavit). Capital
Air’s main source of profit, historically speaking, was from the resale of the equipment
acquired from Plaintiff and other suppliers. See Exhibit 1 (Romeo affidavit).
13. Deposition testimony is required from Anglia’s representative Andrea Thurman
on whether they met with LaCour in person or otherwise had contact with him regarding
Capital Air, what she said to LaCour, and if LaCour made disparaging statements regarding
Capital Air. Further, deposition testimony is required to determine Anglia Homes’ reasoning
for terminating work with Capital Air, which is necessary to demonstrate proximate cause.
Carrier’s responses to production demonstrate that LaCour had contact with Anglia. See
Exhibit 4 (email exchange). When Capital Air filed its counterclaims, it did not know for
certain as to whether the contact was made by phone, by email, or in person. Taking Carrier’s
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discovery responses at face value, including its completeness, it appears that LaCour’s contact
was in person and/or by phone, making it necessary to depose Ms. Thurman. LaCour’s email
exchanges with Design Tech Homes also demonstrate that he had contact with it regarding
Capital Air. See Exhibit 3.
B. Evidence is material to opposition.
14. This evidence is material to Capital Air’s opposition to Carrier’s motion for
summary judgment because the depositions will shine light on what LaCour communicated
to Anglia Homes, Design Tech, and Shea Homes. This testimony will provide evidence as to
the second element of tortious interference with an existing contract—that defendant
willfully and intentionally interfered with the contract. The depositions of representatives of
the three builders will provide essential and material evidence as to what they communicated
with LaCour, what they heard from LaCour (to corroborate or to controvert what he claims
he said), and what their motivations were in terminating Capital Air’s contracts, the third
element of tortious interference, that the interference proximately caused Capital Air’s
injuries.
15. Requests for production responses from Plaintiff are important because
Defendant requires evidence as to why Plaintiff terminated LaCour. Such documentary
evidence, if created contemporaneously with such termination, could document or
corroborate the reason(s) for termination, which could tell a different or additional story to
the testimony of witness LaCour. Production discovery is also important to show Plaintiff’s
sales to the three builders, especially if sales increased, to show the incentive to cut out
Capital Air from the distribution chain of HVAC equipment to these builders. Logically, a
distribution company like Carrier could decide to distribute its products directly to builders
and could reap benefits from such decision. However, further discovery—production and
depositions—are necessary to determine the motivations behind LaCour’s conduct and how
Plaintiff benefits.
C. Capita Air and Romeo have exercised diligence in attempting to obtain the
evidence.
16. Capital Air and Romeo have been unable to obtain this evidence earlier even
though they diligently used the discovery process. First, Defendants note that the deposition,
of Andrea Thurman has been set for April 17 (pending any possible objections from
deponents or Plaintiff). Capital Air has sought production of documents, interrogatories, and
admissions. In requests for production, it sought the following information: communications
LaCour had with Anglia Homes, Shea Homes, Design Tech Homes, and Grace Point Homes.
It also sought: communications regarding the termination of LaCour’s employment with
Plaintiff (response pending); sales information to the three builders as discussed above
(response pending); and information regarding Carrier’s knowledge of LaCour’s contact with
the three builders (response pending). Defendants were uncertain how LaCour’s contact
with the builders was performed—in person, by e-mail, or by phone, or combinations of two
or three. Paper discovery was sought to determine the method of communications. Further,
other than for Anglia Homes (via Andrea Thurman), Romeo was uncertain as to who
specifically LaCour contacted, because Romeo he did not recall if the people who contacted
him regarding LaCour’s actions were the same people LaCour contacted, or if LaCour
contacted subordinates whose supervisors called Romeo and informed him of LaCour’s
contact. Finally, to secure deposition testimony, we had to locate the witnesses after
determining who the witnesses are (Defendants continue to confirm and locate witnesses).
Interestingly, LaCour no longer is employed by Plaintiff; Andrea Thurman no longer works
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for Anglia; Maria Harding no longer works for Anglia, and she no longer lives in Texas. In
fact, Defendants were uncertain as to whether the primary witness last name was “LaCour”
or “LaClour.” His employment location is still unknown, but Defendants have located his
home address, and his phone number was found via a search of Defendant Romeo’s phone
records. Defendants located Thurman as an employee of Chesmar Homes in Houston, who
according to her LinkedIn biography, started such job in February 2018, and her home
address, via Internet research. Defendants located Maria Harding via internet research on
LinkedIn, and she is employed by another homebuilder in Atlanta, Georgia. Defendants
have been unsuccessful in contacting Harding.
17. Diligence is based on what a reasonable party can perform under the
circumstances of Capital Air. Capital Air’ lost contracts with Anglia Homes, Design Tech,
and Shea Homes resulted from Carrier’s actions through its employee LaCour. Without
major builders as customers, which Capital Air had relied upon for years, Romeo decided to
shut down Capital Air’s operations after 38 years, because Capital Air’s employees and
crews had left their employment. Since Romeo decided to move forward without operating
Capital Air, the names of the persons were not remembered, and Defendants had to search
for witnesses, via research and calling colleagues, and interview potential witnesses
regarding LaCour’s statements.
18. Capital Air was left without business and revenue; itcould not pay its office
rent and other creditors. The landlord at its Spring location exercised its right to lockout,
sold much of the property in the building, even Romeo’s personal items, and left a mess.
After negotiations, the landlord allowed Romeo to retrieve what files and property that he
could in one business day. On such trip, he received assurances from a security guard hired
by landlord at Romeo’s expense that he could store Capital Air records in Capital Air’s own
large, portable storage containers, on site, to retrieve the next day. Instead, Landlord hauled
off the containers, discarded the files (after a warning that such files contained evidence for a
case), and sold the containers (or kept them). See Exhibit 1 (Romeo affidavit). Such
incident has left Capital Air virtually without paper files. Capital Air’s servers from the
business required a new location and setup. See Exhibit 1 (Romeo affidavit). Accordingly,
since the inception of the lawsuit, Capital Air and Romeo have had to try and salvage paper
files (unsuccessfully), restore servers and computers and locate electronic files, restore
electronic mail service, restart its accounting system, scramble and pay for attorney’s fees,
trade creditors, and deal with lawsuits and creditor’s demands, phone calls, and collection
efforts, including Plaintiff’s, and determine who the witnesses are in this case, locate them,
weigh contradictory and possibly untrue statements from discussions with potential
witnesses, and attempt to schedule depositions, all while defending and prosecuting this
action and answering Plaintiff’s voluminous discovery requests, all without Capital Air’s
historic business, due to Plaintiff’s actions. Had Plaintiff’s representative LaCour not
undertaken actions that constitute tortious interference, business disparagement, and possibly
unfair trade practices, Capital Air would be in business today and making payments to
Plaintiff. See Exhibit 1 (Romeo affidavit).
E. Case has been on file for short period of time.
19. This case has been on file for a short period of time: less than twelve months,
and it has not been continued one time. The lawsuit was not served until June 15, 2017, over
five weeks after its filing. Defendants answered on July 24, 2017. Defendants filed its
Original Counterclaim on September 14, 2017, without a full understanding of what had
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transpired. Defendants filed their First Amended Answer on October 27, 2017. The parties
conducted paper discovery in Fall 2017 and Spring 2018. Plaintiff filed a Motion for
Summary Judgment on February 12, 2018 on its breach of contract claim. Plaintiff took
Romeo’s deposition on February 27, 2018 after rescheduling due to Romeo’s short-term
sickness. Defendants filed Responses to the Motion on March 5, a Motion for Leave to Add
Additional Summary Judgment Evidence on March 8, and a Reply on March 12. Defendants
filed their Second Amended Answer on March 5, 2018. Plaintiff filed its No Evidence
Motion for Summary Judgment on March 29, with a hearing date, by submission, on April
23. The discovery period is set to end on April 23 (since the deadline is on April 21, a
Saturday). Trial is set for May 21.
CONTINUANCE UNTIL COURT RULES ON DISCOVERY MOTIONS
20. Defendants ask the Court to continue the summary-judgment hearing until after
it rules on this motion and conducted the depositions of Thurman from Anglia and the proper
representative from Design Tech and Shea Homes. A party is entitled to a ruling on its
discovery motions within a reasonable time. Nelson v. PNC Mortg. Corp., 139 S.W.3d 442,
445 (Tex. App.—Dallas 2004, no pet.). Granting a summary judgment before ruling on a
party’s discovery motions forecloses any possibility that the party can exercise its right to
obtain reasonable discovery before summary judgment. Id. For this reason, Defendants asks
the Court to continue the summary-judgment hearing until 14 days after it rules on this
motion.
CONCLUSION
21. Defendants require additional time to conduct discovery. The discovery period
is still open, and Defendants have scheduled depositions of the key witness, Brian LaCour,
on Monday, April 16, 2018, within the discovery period, but on the same day as the response
deadline to Plaintiff’s No Evidence Summary Judgment Motion on Defendants’
counterclaims. Defendants have scheduled a deposition of Thurman on April 17. Defendants
have reasonably conducted discovery and taken steps to investigate who LaCour contacted
and to identify, locate, and depose witnesses. Defendants filed and served subpoena for
LaCour and former Anglia employee, Andrea Thurman.
PRAYER
22. For these reasons, Defendants ask the Court to continue the hearing on
Plaintiff/Counter-Defendants Carrier Enterprise’s Motion for No Evidence Summary
Judgment so that Defendants/Counter-Plaintiffs may (1) conduct the deposition of Brian
LaCour and review such transcripts; (2) conduct the deposition of Andrea Thurman and
review such transcripts; (3) conduct the deposition of the appropriate Design Tech Homes
representative with whom LaCour contacted regarding Capital Air; (4) conduct the
deposition of the appropriate Shea Homes representative with whom LaCour contacted
regarding Capital Air; and (5) receive and review Plaintiff’s Responses to Defendants’
Second Request for Production and Second Set of Interrogatories.
Respectfully submitted,
By: {s} R James
Richard C. James
Texas Bar No. 24041179
Email: richard@rcjlawfirm.com
719 Sawdust Road, Suite 300
The Woodlands, Texas 77380
Tel. (713) 389-5755
Fax. (713) 389-5756
Attorney for Defendants
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CERTIFICATE OF SERVICE
I certify that on April 16, 2018, a true and correct copy of Defendant's Original Answer
was served on Plaintiff via its counsel of record electronically through the electronic filing
manager.
{s} R James
Richard C. James
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CARRIER ENTERPRISE, LLC IN THE DISTRICT COURT Plaintiff, 125TH JUDICIAL DISTRICT CAPITAL AIR & HEAT, LTD., LAWRENCE J. ROMEO AND ROMEO VENTURES, INC. Defendants. OF HARRIS COUNTY, TEXAS DEFENDANTS/COUNTER PLAINTIFFS MOTION FOR CONTINUAN Comes now, Defendants/Counter Plaintiffs Capital Air & Heat, Ltd. (“Capital Air”) Lawrence J. Romeo (“Romeo”), and Romeo Ventures, Inc. (collectively, the “Defendants”) and asks the Court to continue the hearing on Plaintiff Carrier Enterprise LLC’s (“Plaintiff” or “Carrier”) Motion for No Evidence Summary Judgment on Defendants’ counterclaims because additional time is needed to obtain discovery, including the conducting important deposition on the day of the response deadline and day after the response deadline and the reviewing of such transcripts and updating any response evidence INTRODUCTION Plaintiff Carrier sued Defendants Capital Air, Romeo, and Romeo Ventures for breach of contract for failure to pay certain invoices from Plaintiff for the purchase of HVAC equipment from Plaintiff. Romeo Ventures is the general partner of Defendant Capital Air, and Romeo is the alleged guarantor of the trade account. Romeo has challenged the validity of the personal guaranty. Defendant Romeo and Capital Air have filed counterclaims for, among other things, business disparagement and for tortious interference with a contract. Capital Air had contractual arrangements with Anglia Homes, LP, Design Tech Homes, and Shea Homes. These companies are also customers of Plaintiff. Plaintiff’s former employee Brian LaCour, who was a sales supervisor with supervisory duties over Capital Air’s credit account, contacted these three builders regarding Capital Air’s business. In his contact with the builders, he made derogatory comments regarding Capital Air, which information discouraged the builders from continuing their business with Capital Air. Indeed, each builder terminated its contract with Capital Air. BACKGROUND 3. On March 29, 2018, Plaintiff filed a no-evidence motion for summary judgment against Defendants/Counter-Plaintiffs for their counterclaims for tortious interference with a contract and tortious interference with a prospective business relationship. Defendants/Counter-Plaintiffs amended their counterclaims on April 9, 2018 to remove the tortious interference claim, because Capital Air had actual contracts and business with each of the three builders, and to add a claim for business disparagement. 4. The hearing for Plaintiff’s motion is set for submission on April 16, 2018. 5. Defendant/Counter-Plaintiff attaches the following affidavits and discovery products as Exhibits in support of the facts stated in this motion and incorporates the evidence into this motion by reference: Exhibit 1 Affidavit of Lawrence J. Romeo Exhibit 2* Responses for Request for Admission Exhibit 3* E-mails from LaCour to Design Tech Exhibit 4* E-mails from LaCour to Anglia 2 Exhibit 5* Romeo Discovery Excerpt The use of these exhibits constitute notice from Defendants to Plaintiff for use of Plaintiff’s discovery products. CONTINUANCE TO OBTAIN ADDITIONAL DISCOVERY 7. Under Texas Rule of Civil Procedure 166a(g), a court can grant a continuance of a summary judgment hearing if the party opposing summary judgment can establish by affidavit or verified motion that it has not had an adequate time for discovery. Tenneco Inc. v. Enter. Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996). To seek a continuance under Rule 166a(g), the affidavit or verified motion must identify the evidence sought, explain why it is material, and state with particularity the diligence used to obtain the evidence. West v. SMG, 318 S.W.3d 430, 443 (Tex. App.—Houston [1st Dist.] 2010, no pet.); Rocha v. Faltys, 69 S.W.3d 315, 319 (Tex. App.—Austin 2002, no pet.). 8. Rule 166a(g) does not require that a movant seeking a continuance of a summary judgment hearing has to follow the procedure of Rule 252 governing the request for additional testimony discovery. However, the Fort Worth Court of Appeals has held that if the basis for continuance is the need to take additional depositions, the affidavit or verified motion must also meet the additional requirements of Texas Rule of Civil Procedure 252. See Tri-Steel Structures, Inc. v. Baptist Found., 166 S.W.3d 443, 448 (Tex. App.—Fort Worth 2005, pet. denied); see also Gundermann v. Buehring, No. 13-05-278-CV (Tex. App.—Corpus Christi 2006, pet. denied) (memo op.; 2-2-06). To meet the additional requirements of Rule 252, the affidavit or verified motion must (1) explain the reasons for not obtaining the discovery earlier, if known, and (2) show that the discovery cannot be obtained from any other source if the party had previously applied for a continuance. Tex. R. Civ. P. 252; see Mulcahy v. Wal-Mart Stores, Inc., No. 02-10-00074-CV (Tex. App.—Fort Worth 2010, no pet.) (memo op.; 12-16-10); Gundermann, No. 13-05-278-CV (memo op.). Rule 252 is part of Section 11 of the Texas Rules of Civil Procedure, “The Trial of Causes,” while Rule 166a is part of Section 8, “Pretrial Procedure.” While Defendants understand that the titles to rules and sections are generally for guidance and convenience only, and not for construing the language or application of the rules, Defendants point to Rule 270, also a part of Section 11, which states, “When it clearly appears to be necessary for the due administration of justice, the court may permit additional evidence to be offered at any time.” This rule even applies after a non-jury verdict. In Moore v. Jet Stream, the court reasoned that in deciding whether to admit additional evidence, a trial court may consider “(1) whether the movant showed due diligence in obtaining the evidence; (2) whether the additional evidence is decisive; (3) whether reopening the evidence will cause undue delay; and (4) whether reopening the evidence will cause injustice.” Moore v. Jet Stream Invs., 315 S.W.3d 195, 201 (Tex. App.—Texarkana 2010, pet denied). 9. If the affidavit or verified motion meets the requirements for a continuance, the court should consider the following nonexclusive factors in deciding whether to grant the motion under Rule 252: (1) the materiality and the purpose of the discovery sought, (2) whether the party exercised due diligence, and (3) the length of time the case has been on file. West, 318 S.W.3d at 443; see Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). These requirements are similar to those factors in Moore, above. A. Evidence sought. 10. Defendants need additional time to obtain the following evidence: (i) deposition testimony from Angela Thurman, a former employee of Anglia Homes, whom Brian LaCour 4 contacted; such deposition is scheduled for Tuesday, April 17, 2018 at 10 a.m, one day after the response deadline to Plaintiff’s Motion for No Evidence Summary Judgment against Defendant/Counter-Plaintiff’s counterclaim, but within the discovery period; (ii) Plaintiff’s Responses to Defendants’ Second Request for Production, specifically regarding Brian LaCour’s termination of employment and Plaintiff’s direct sales of HVAC equipment to Capital Air’s customers, Anglia Homes, LP, Design Tech Homes, and Shea Homes, the very customers who LaCour contacted and tortiously interfered with Defendant Capital Air’s business; and (iii)deposition testimony from the appropriate Shea Homes and Design Tech Homes representative to determine what they said to LaCour, what they were told, and for their motivations for terminating business with Capital Air. 11. Plaintiff has admitted that LaCour is no longer employed by Plaintiff, but it denies that his employment was terminated due to his alleged actions against Capital Air. See Exhibit 2 (Responses to Request from Admissions). Deposition testimony would provide evidence as to why he was terminated, from the point of view of LaCour, and whether such termination was based on wrongful actions against Capital Air, again from his point of view. 12. Defendants need further discovery responses which are pending from Plaintiff, including requests for production regarding Plaintiff’s sales to the same builders which were customers to Capital Air. It is generally known in the HVAC business that builders are customers of the major HVAC suppliers via Carrier Enterprise’s provision of rebates to builders. See Exhibit 1 (Romeo affidavit). Further, Plaintiff admits it. In Plaintiff’s deposition of Defendant Romeo, Plaintiff’s counsel asked the following question: “Okay. And do you realize—do you—do you understand that these builders are also customers of Carriers as well?” See Exhibit 5, Deposition of Romeo, page 79, Lines 5-10 (emphasis added). Romeo answered yes. See id. at lines 8, 10. Defendants have asserted in their counterclaims that Plaintiff’s employee Brian LaCour tortiously interfered with Defendant Capital Air’s contracts with Anglia Homes, Shea Homes, and Design Tech Homes, and it so happens that Plaintiff also sells HVAC equipment directly to such homebuilders. Discovery is necessary to determine the amount of sales to these homebuilders and to determine the motivation for LaCour’s contact with these builders, as Carrier had the incentive and opportunity to remove Capital Air from business with these customers. Plaintiff Carrier Enterprise desired for these builders to continue using Carrier equipment and providing its rebates, and LaCour’s actions were designed to prevent Capital Air from acquiring Carrier equipment from another supplier (United Air) or from other suppliers (such as Trane). See Exhibit 1 (Romeo affidavit). Capital Air’s main source of profit, historically speaking, was from the resale of the equipment acquired from Plaintiff and other suppliers. See Exhibit 1 (Romeo affidavit). 13. Deposition testimony is required from Anglia’s representative Andrea Thurman on whether they met with LaCour in person or otherwise had contact with him regarding Capital Air, what she said to LaCour, and if LaCour made disparaging statements regarding Capital Air. Further, deposition testimony is required to determine Anglia Homes’ reasoning for terminating work with Capital Air, which is necessary to demonstrate proximate cause. Carrier’s responses to production demonstrate that LaCour had contact with Anglia. See Exhibit 4 (email exchange). When Capital Air filed its counterclaims, it did not know for certain as to whether the contact was made by phone, by email, or in person. Taking Carrier’s 6 discovery responses at face value, including its completeness, it appears that LaCour’s contact was in person and/or by phone, making it necessary to depose Ms. Thurman. LaCour’s email exchanges with Design Tech Homes also demonstrate that he had contact with it regarding Capital Air. See Exhibit 3. B. Evidence is material to opposition. 14. This evidence is material to Capital Air’s opposition to Carrier’s motion for summary judgment because the depositions will shine light on what LaCour communicated to Anglia Homes, Design Tech, and Shea Homes. This testimony will provide evidence as to the second element of tortious interference with an existing contract—that defendant willfully and intentionally interfered with the contract. The depositions of representatives of the three builders will provide essential and material evidence as to what they communicated with LaCour, what they heard from LaCour (to corroborate or to controvert what he claims he said), and what their motivations were in terminating Capital Air’s contracts, the third element of tortious interference, that the interference proximately caused Capital Air’s injuries. 15. Requests for production responses from Plaintiff are important because Defendant requires evidence as to why Plaintiff terminated LaCour. Such documentary evidence, if created contemporaneously with such termination, could document or corroborate the reason(s) for termination, which could tell a different or additional story to the testimony of witness LaCour. Production discovery is also important to show Plaintiff’s sales to the three builders, especially if sales increased, to show the incentive to cut out Capital Air from the distribution chain of HVAC equipment to these builders. Logically, a distribution company like Carrier could decide to distribute its products directly to builders and could reap benefits from such decision. However, further discovery—production and depositions—are necessary to determine the motivations behind LaCour’s conduct and how Plaintiff benefits. C. Capita Air and Romeo have exercised diligence in attempting to obtain the evidence. 16. Capital Air and Romeo have been unable to obtain this evidence earlier even though they diligently used the discovery process. First, Defendants note that the deposition, of Andrea Thurman has been set for April 17 (pending any possible objections from deponents or Plaintiff). Capital Air has sought production of documents, interrogatories, and admissions. In requests for production, it sought the following information: communications LaCour had with Anglia Homes, Shea Homes, Design Tech Homes, and Grace Point Homes. It also sought: communications regarding the termination of LaCour’s employment with Plaintiff (response pending); sales information to the three builders as discussed above (response pending); and information regarding Carrier’s knowledge of LaCour’s contact with the three builders (response pending). Defendants were uncertain how LaCour’s contact with the builders was performed—in person, by e-mail, or by phone, or combinations of two or three. Paper discovery was sought to determine the method of communications. Further, other than for Anglia Homes (via Andrea Thurman), Romeo was uncertain as to who specifically LaCour contacted, because Romeo he did not recall if the people who contacted him regarding LaCour’s actions were the same people LaCour contacted, or if LaCour contacted subordinates whose supervisors called Romeo and informed him of LaCour’s contact. Finally, to secure deposition testimony, we had to locate the witnesses after determining who the witnesses are (Defendants continue to confirm and locate witnesses). Interestingly, LaCour no longer is employed by Plaintiff; Andrea Thurman no longer works 8 for Anglia; Maria Harding no longer works for Anglia, and she no longer lives in Texas. In fact, Defendants were uncertain as to whether the primary witness last name was “LaCour” or “LaClour.” His employment location is still unknown, but Defendants have located his home address, and his phone number was found via a search of Defendant Romeo’s phone records. Defendants located Thurman as an employee of Chesmar Homes in Houston, who according to her LinkedIn biography, started such job in February 2018, and her home address, via Internet research. Defendants located Maria Harding via internet research on LinkedIn, and she is employed by another homebuilder in Atlanta, Georgia. Defendants have been unsuccessful in contacting Harding. 17. Diligence is based on what a reasonable party can perform under the circumstances of Capital Air. Capital Air’ lost contracts with Anglia Homes, Design Tech, and Shea Homes resulted from Carrier’s actions through its employee LaCour. Without major builders as customers, which Capital Air had relied upon for years, Romeo decided to shut down Capital Air’s operations after 38 years, because Capital Air’s employees and crews had left their employment. Since Romeo decided to move forward without operating Capital Air, the names of the persons were not remembered, and Defendants had to search for witnesses, via research and calling colleagues, and interview potential witnesses regarding LaCour’s statements. 18. Capital Air was left without business and revenue; itcould not pay its office rent and other creditors. The landlord at its Spring location exercised its right to lockout, sold much of the property in the building, even Romeo’s personal items, and left a mess. After negotiations, the landlord allowed Romeo to retrieve what files and property that he could in one business day. On such trip, he received assurances from a security guard hired by landlord at Romeo’s expense that he could store Capital Air records in Capital Air’s own large, portable storage containers, on site, to retrieve the next day. Instead, Landlord hauled off the containers, discarded the files (after a warning that such files contained evidence for a case), and sold the containers (or kept them). See Exhibit 1 (Romeo affidavit). Such incident has left Capital Air virtually without paper files. Capital Air’s servers from the business required a new location and setup. See Exhibit 1 (Romeo affidavit). Accordingly, since the inception of the lawsuit, Capital Air and Romeo have had to try and salvage paper files (unsuccessfully), restore servers and computers and locate electronic files, restore electronic mail service, restart its accounting system, scramble and pay for attorney’s fees, trade creditors, and deal with lawsuits and creditor’s demands, phone calls, and collection efforts, including Plaintiff’s, and determine who the witnesses are in this case, locate them, weigh contradictory and possibly untrue statements from discussions with potential witnesses, and attempt to schedule depositions, all while defending and prosecuting this action and answering Plaintiff’s voluminous discovery requests, all without Capital Air’s historic business, due to Plaintiff’s actions. Had Plaintiff’s representative LaCour not undertaken actions that constitute tortious interference, business disparagement, and possibly unfair trade practices, Capital Air would be in business today and making payments to Plaintiff. See Exhibit 1 (Romeo affidavit). E. Case has been on file for short period of time. 19. This case has been on file for a short period of time: less than twelve months, and it has not been continued one time. The lawsuit was not served until June 15, 2017, over five weeks after its filing. Defendants answered on July 24, 2017. Defendants filed its Original Counterclaim on September 14, 2017, without a full understanding of what had 10 transpired. Defendants filed their First Amended Answer on October 27, 2017. The parties conducted paper discovery in Fall 2017 and Spring 2018. Plaintiff filed a Motion for Summary Judgment on February 12, 2018 on its breach of contract claim. Plaintiff took Romeo’s deposition on February 27, 2018 after rescheduling due to Romeo’s short-term sickness. Defendants filed Responses to the Motion on March 5, a Motion for Leave to Add Additional Summary Judgment Evidence on March 8, and a Reply on March 12. Defendants filed their Second Amended Answer on March 5, 2018. Plaintiff filed its No Evidence Motion for Summary Judgment on March 29, with a hearing date, by submission, on April 23. The discovery period is set to end on April 23 (since the deadline is on April 21, a Saturday). Trial is set for May 21. CONTINUANCE UNTIL COURT RULES ON DISCOVERY MOTIONS 20. Defendants ask the Court to continue the summary-judgment hearing until after it rules on this motion and conducted the depositions of Thurman from Anglia and the proper representative from Design Tech and Shea Homes. A party is entitled to a ruling on its discovery motions within a reasonable time. Nelson v. PNC Mortg. Corp., 139 S.W.3d 442, 445 (Tex. App.—Dallas 2004, no pet.). Granting a summary judgment before ruling on a party’s discovery motions forecloses any possibility that the party can exercise its right to obtain reasonable discovery before summary judgment. Id. For this reason, Defendants asks the Court to continue the summary-judgment hearing until 14 days after it rules on this motion. CONCLUSION 21. Defendants require additional time to conduct discovery. The discovery period is still open, and Defendants have scheduled depositions of the key witness, Brian LaCour, on Monday, April 16, 2018, within the discovery period, but on the same day as the response deadline to Plaintiff’s No Evidence Summary Judgment Motion on Defendants’ counterclaims. Defendants have scheduled a deposition of Thurman on April 17. Defendants have reasonably conducted discovery and taken steps to investigate who LaCour contacted and to identify, locate, and depose witnesses. Defendants filed and served subpoena for LaCour and former Anglia employee, Andrea Thurman. PRAYER 22. For these reasons, Defendants ask the Court to continue the hearing on Plaintiff/Counter-Defendants Carrier Enterprise’s Motion for No Evidence Summary Judgment so that Defendants/Counter-Plaintiffs may (1) conduct the deposition of Brian LaCour and review such transcripts; (2) conduct the deposition of Andrea Thurman and review such transcripts; (3) conduct the deposition of the appropriate Design Tech Homes representative with whom LaCour contacted regarding Capital Air; (4) conduct the deposition of the appropriate Shea Homes representative with whom LaCour contacted regarding Capital Air; and (5) receive and review Plaintiff’s Responses to Defendants’ Second Request for Production and Second Set of Interrogatories. Respectfully submitted, By: {s} R James Richard C. James Texas Bar No. 24041179 Email: richard@rcjlawfirm.com 719 Sawdust Road, Suite 300 The Woodlands, Texas 77380 Tel. (713) 389-5755 Fax. (713) 389-5756 Attorney for Defendants 12 CERTIFICATE OF SERVICE I certify that on April 16, 2018, a true and correct copy of Defendant's Original Answer was served on Plaintiff via its counsel of record electronically through the electronic filing manager. {s} R James Richard C. James