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IN THE DISTRICT COURT
Plaintiff,
HARRIS COUNTY, TEXAS
JUDICIAL DISTRICT
PLAINTIFF’S RESPONSES TO DEFENDANTS’ OBJECTIONS TO
PLAINTIFF’S SUMMARY JUDGMENT RESPONSE EVIDENCE
Plaintiff RSS MSBAM2014C-17-TX-HAH, LLC (“Plaintiff”), by its undersigned counsel,
files its Responses to Defendants’ Objections to Plaintiff's Summary Judgment Response
Evidence (the “Objections”’) and respectfully states as follows:
A, Introduction
In the Reply in Support of its Traditional and No-Evidence Motion for Partial Summary
Judgment, Defendants—understanding that Plaintiff's Response to Defendants’ Traditional and
No-Evidence Motion for Partial Summary Judgment (the “Response”) overwhelmingly evidences
Defendants’ pervasive waste and the Hotel’s deplorable condition and properly sets forth
Plaintiff's substantial damages, including the costs incurred correcting waste and lost profits
resulting from such waste—resort to blatantly mischaracterizing Plaintiff's evidence and ignoring
key arguments set forth in Plaintiff's Response. In similar fashion and in a desperate attempt to
prevent the Court from considering certain of Plaintiff's substantial evidence, Defendants
improperly seek to exclude such damning evidence. As set forth below, Defendants’ Objections
rt should overrule them.
Plaintiff's arguments in this regard are set forth in more detail in Plaintiff's Sur-Reply to Defendants’ Reply in
Support of Its Traditional and No-Evidence Motion for Partial Summary Judgment.
145470410.1
Responses
Ex. A
personal knowledge and
of $331,795.53 from the capital foundation; assumes facts not in
A statement that one disbursal was
request it made from the FF&E made provides no factual
Reserve Account by the time it
reimbursements had been satisfied.
RESPONSE:
See
eceipts and disbursements made
April 2017, when Plaintiff accelerated the loan and called all amounts immediately due.
Plaintiff's disbursements to Defendants from the capital expenditure account, thereby
rendering Tex. R. Evid. 602 inapplicable.
Ex. A
personal knowledge and
Spectrum Field Services
(“Spectrum”) as required by the The witness lacks personal
Agreement related to the loan for
Spectrum report, which is
evidence; TEX. R. EVID. 1003
Motion for Partial Summary Best evidence
Judgment as Exhibit J, and many
others like it. It is my
understanding that Spectrum inadmissible. The report speaks for
performed a perfunctory itself.
no more than 30 minutes as
Spectrum was only paid $150 for
-2-
145470410.1
ee
RESPONSE: In his role as an Asset Manager for Rialto, Mr. Stanton has extensive familiarity
with the types of inspections performed by Spectrum Field Services (“Spectrum”) and many
others like it, which are required by the Pooling and Servicing Agreement relating to
Defendants’ loan. Stanton Aff. at § 14. Accordingly, Mr. Stanton understands how such
ctions. Thus, T
ike Mr. Stanton’s testimony.
Defendants fail to explain why they believe Mr. Stanton’s statements are irrelevant.
Indeed, such statements are relevant and will assist the Court with determining Plaintiff's lack
of knowledge of the Hotel’s terrible condition in or around April 2017. Stanton Aff. at J
14. Tellingly, Defendants do not explain why they believe Mr. Stanton’s statements are
irrelevant; thus, T is inapplicable. Moreover, Defendants misconstrue Mr.
Stanton’s statements. He is merely commenting on the scope of the inspection and its st, and
not the actual contents of the inspection report. Accordingly, 1003 is likewise
Ex. A As part of its damages, Plaintiff
personal knowledge and
detailed in an Impact Analysis foundation, speculation
LW Hospitality Advisors, which
are attached to Plaintiff's
evidence; TEX. R. EVID. 1003
Best evidence
referenced document is irrelevant
and inadmissible. The document
Prejudicial
misleading. The referenced report
makes purported profit
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only loan payments, not profits
made b
RESPONSE: Mr. Stanton merely comments that “Plaintiff has suffered certain lost profits
detailed in an Impact Analysis and Addenda Letter prepared by LW Hospitality Advisors”—
deferring to the experts who prepared the anal S, Stanton Aff. at § 18. Mr. Stanton does
not contend that he prepared the Impact Analys and he does not “interpret” such analysis. Nor
do Plaintiff’s contend that Mr. Stanton is an expert on the topic. Therefore, T
401 and 702 do not bar Mr. Stanton’s statement.
Also, the Impact Analys is relevant because it will as: t the Court with determining
the extent of Plaintiff’s lost profits damages, which are clearly supported by case-law.
White v. MLMT 2004-BPC1 Carlyle Crossing, LLC, No. 02—10-00233-CV, 2011 WL 3672022
(Tex. App.—Fort Worth Aug. 18, 2011, pet. denied) (mem. op.). That Defendants disagree with
the Impact Analysis is not a basi t is irrelevant.
Ex. A Sham affidavit
admitted at my deposition that
many of the items Plaintiff is
seeking as damages in this (3) a material point (4) without
lawsuit are not waste. To the explanation, the ‘sham affidavit’
contrary, I stated that the items doctrine may be applied.” We
it has to perform were caused by
HAH’s failure to maintain the under such circumstances.” Lujan
The witness’s affidavit executed
the material fact about which items
of Plaintiff's damages constitute
testified in his deposition that
“items on the Plaintiff's Deferred
HAH’s failure to maintain the
-4-
145470410.1
not the same as “waste.” 102:23-
25. When asked whether he
equated something (like an
its useful life to waste, the witness
testimon
RESPONSE: Under Texas law, a sham affidavit is one “which directly contradicts, without
explanation, [the affiant’s] previous testimony.” Lujan v. Navistar, Inc., 555 S.W.3d 79, 85
(Tex. 2018). The sham affidavit rule does not apply here because Mr. Stanton did not contradict
a prior sworn statement of his. Indeed, Mr. Stanton did not contradict any of the deposition
testimony Defendants cite. Indeed, Mr. Stanton testified extensively about the Hotel’s condition
during his deposition. Stanton Deposition Tr. at 101:15-16 (“I think [waste is] generally
negligence, deferred maintenance ligence.””); 109:7-11 (“Because if
issues are known about and they’re raised and discussed and action is not taken in spite of
communication and knowledge of the issues, then that could absolutely rise to the level of
waste.”); 112:25-113:3 (Well, the environmental covenant, Section 12.2, requires [the
orrower] to keep the property free of mold and use commercially reasonable efforts to do so.
And based on my review of the discovery, that was not done.”); 122:18-22 (“That’s on the
her side would be waste, whic
expert reports, Stephanie’s cost sheet for deferred maintenance, and also the PIP cost on that
front.”); 134:3-7 (Well, first of all, that’s money that could have been used toward the PIP or
for deferred maintenance issues that wasn’t generated by the property because of negligence on
aresult, the revenue from t
Ex.B “T was aware that the Hotel had
Haymore mold remediation done in 2015. foundation, speculation, assumes
remediation, the company that The witness lacks personal
knowledge about the obligations of
the hallways and guestrooms and the mold remediation company
reconstructing them so they specified in the contract with
to rebuild approximately seven
to 10 guestrooms, leaving them the remediation company failed to
perform its contractual obli
-5-
145470410.1
The mold remediation company The witness is speculating.
removed.”
RESPONSE: Defendants’ Objection is misleading and T 602 is inapplicable. In
2015, Mr. Haymore was the as: ant to the Hotel’s Chief Engineer and had personal knowledge
about the Hotel’s condition. Haymore Aff. at § 2. Indeed, he had personal knowledge about
what Hotel rooms were not rebuilt after mold remediation efforts and the state of the hallway
carpeting at the time. See id. at §5. Mr. Haymo fic
terms of the contract with the mold remediation company.
Ex.B
Haymore accompany any inspectors for personal knowledge and
I was employed by Pacifica, I The witness lacks personal
was aware from my discussions
rooms to show the inspectors
The witness’s testimony is
areas of the Hotel that had mold
problems.”
RESPONSE: Mr. Haymore is merely conveying what he was told by an employe
n McFarland. Such testimony is not hearsay because what Mr.
titutes a statement of an opposing party, which is exempted
from hearsay pursuant to T
Ex.B
Haymore substantial deferred maintenance personal knowledge and
for numerous reasons, including
that the maintenance department The witness lacks personal
their own tools and many
machinery and equipment
maintenance existed or the hotel’s
witness is a hotel maintenance
to operate the Hotel as a number
witness is speculating.
bids to do work at the Hotel
because prior bids had not been
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145470410.1
ee
RESPONSE: Mr. Haymore has personal knowledge about the Hotel’s deferred maintenance
and that employees (including himself) often had to bring their own tools to work to make repairs
to the Hotel. He also has personal knowledge that requests to fix or replace Hotel components
“were refused or ignored.” Further, in his role at the Hotel, he has personal knowledge that
certain vendors would refuse to provide bids or do work at the Hotel. Accordingly, T
Ex.B “Tam familiar with most of the
Haymore personal knowledge and
foundation, speculation; TEX. R.
Summary Judgment as Exhibit 1
have been done, whether items
were maintained, whether items
Many of the items on the list
were never properly maintained whether items had outlived their
boilers, elevators, water pumps,
PTACs, bathroom vents, other
HVAC ‘stem components and witness is speculating.
landscaping. Other items had
outlived their usefulness and
earlier, such as the phone system
stem.”
RESPONSE: Mr. Haymore has worked at the hotel for more than eight years,
and maintenance that may or may not have taken place at the Hot Haymore Aff. at 7§ 2,
10. He is clearly competent to testify to the set forth in paragraph 10 of his affidavit.
Thus, his testimony is proper pursuant to T
Ex.B “The water pump for well water
Haymore at the Property leaked due to personal knowledge and
foundation, speculation; TEX. R.
mechanical room. The lobby,
system and 38 roof ventilator
e repaired or
-7-
145470410.1
ee
the cause of any musty odor, what
limited any ability to divide
meeting spaces, or why water was
125 guestrooms located in the entering the hotel. The witness
Hotel’s A-Wing lacked adequate
faucets remained turned on in
guestroom 502 all day every day. speculating.
Borrower’s failure to replace all
the airwalls separating meeting
spaces in the ballroom limited
the ability to divide the meeting
spaces for multiple groups to use
at the same time. Water was
entering 11 rooms of the Hotel in
the Hotel’s D-Wing when it
rained because sloping in the
drainage problems, a problem
RESPONSE: . Haymore’s affidavit are based
As also set forth above, such testimony is proper under T
Ex. D “Tt was obvious to me that the
Expert Testimony
reasonable care of the Hotel.”
RESPONSE: Plaintiff does not purport to offer Ms. Mazza as an expert. H
job at Rialto Capital Advisors, LLC. Thus, her testimony is pr
Ex. D
the capital expenditure list they personal knowledge and
foundation, speculation
The witness lacks personal
Summary Judgment (the witnes is speculating.
-8-
145470410.1
Almost half of the money spent Evidence, TEX. R. EVID. 1003
Ex List related to mold
remediation at the Hotel
conducted primarily in 2015. It meaning of the referenced
also is apparent from documents violate the parole
Defendants spent no more evidence rule. The referenced
money on mold remediation and document speaks for itself.
mechanical systems from
21, 2017 when the receiver took
RESPON: : Ms. Mazza’s testimony in paragr
observations of Defendants’ Capital Expenditure List that is attached to their summary
judgment motion as Exhibit R. Ms. Mazza is not speculating. Rather, she is commenting
about what is reflected on the This is precisely the same
improper and T
Ex. D “Attached to Plaintiffs
personal knowledge and
foundation, speculation TEX. R.
List. Once you deduct the money
The witness lacks personal
property improvement plan
and for WiFi upgrades,
20-month period, of which no
elevators, boilers, water systems,
roofs, telephone system, fire
protection system, plumbing and
landscaping, and minimal
amounts were spent on the
purchase of some individual
PTACs for guest rooms), all of
receiver too
-9-
145470410.1
ee
RESPONSE: Ms. Mazza’s testimony in paragr D merely
the information used to create the exhibit is the information p
mmarizing and providing
observations of information Defe
are inapplicable.
Ex. D
$3.5 million has been and will be
failure to maintain the Hotel in a
The witness speculatin
RESPONSE: Ms. Mazza has personal knowledge about the “almost $3.5 millio
because Ms. Mazza has not been designated as an expert is baseless. Similarly, Ms. Mazza is
familiar with the bids, work and bills obtained and incurred by
to provide a summary of same. Def erit.
Ex. D “Tn addition, to maintain the
Holiday Inn flag, Plaintiff was
forced to do a PIP because HAH
obligated to perform.” what HAH failed to do. The
witness is speculatin
RESPONSE: nts did not perform their PIP b
admitted that they did not complete their PIP. Thus, Ms. Mazza’s testimony is not
s and Defendants’ admissions.
Ex. D “The PIP is largely the same as
HAH’s PIP except it reflects foundation, speculation,
-10-
145470410.1
the contents of the HAH PIP, as to
(such as in the bathrooms) that
were not in HAH’s PIP because
HAH had failed to perform its PIP, or as to why such items were
PIP timely.”
witness is speculatin
RESPONSE: Again, Ms. Mazza is familiar with both Defendants’ and Plainti
upon her review of each and having had discussions with the fra
upon the terms of Defendants’ PI
applicable.
Ex. D “As part of the PIP, Plaintiff will
foundation, speculation,
approximately 90 rooms that
were so badly infested with mold
that I understand much of the
witnes is speculating.
RESPONSE: Ms. Mazza has personal knowledge about what is contained in Plaintiff's PIP and
the work that Plaintiffis intending to complete in connection with the PIP. Also, she personally
inspected the Hotel and saw first-hand the mold infestation, which would necessitate disposing
of mold infested furnishings. Ms. Mazza’s testimony does not consist of speculation but is based
. 602 remains inapplicable.
Ex. D
offers no opinions on any material
waste, or the amount of
impairment to the value of the
RESPONSE: Defendants’ objection to Mr. Daniele’s entire affidavit is curious since they did
not move to exclude Mr. Daniele as an expert on the grounds that his opinions are irrelevant and
do not pertain to any “material fact in dispute.” Even more curious is Defendants’ assertion that
Mr. Daniele’s affidavit and reports “offers no opinions . . . that any condition of the hotel was
as a result of waste,” which is a material fact in dispute in this case. To the contrary, Mr.
Daniele’s affidavit states, amon other thin s, that (a) “the Hotel is one of the ver_worst in
-ll-
145470410.1
physical condition of any hotel I have ever seen” (§j 5); (b) “[t]he Hotel’s suffered from severe
deferred maintenance and lack of capital expenditures from the Defendants in this case” ({ 6);
and (c) “the mold that existed at the Hotel was the worst I had ever seen in any building.”
Accordingly, Defendants’ objection is meritless and T - 401 does not bar Mr.
Ex. G
RESPONSE: Defendants do not explain how or why Mr. Daniele’s expert reports attached to
his affidavit are hearsay, which is telling since Defendants attached reports to their summary
judgment motion, including one of Mr. Daniele’s reports (Exh. N) and a report of one of
Exh. O). Defendants’ objection is therefore baseless.
Cc. Conclusion
entirety.
-12-
145470410.1
Respectfully submitted,
(s/ David M. Neff
Skyler M. Howton
PERKINS COIE LLP
Facsimile: 214-965-7799
(Admitted Pro Hac Vice)
(Pro Hac Vice Pending)
PERKINS COIE LLP
ATTORNEYS FOR PLAINIIFF
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145470410.1
Certificate of Service
I hereby certify that a true and correct copy of the foregoing was electronically filed with
the Clerk of Court and served on the following on August 26, 2019, using electronic notification,
Amy C. Falcon
Brett W. Chalke
Porter Hedges LLP
rtorgerson@porterhedges.com
dmartin@porterhedges.com
/s/ David M. Neff
-14-
145470410.1
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IN THE DISTRICT COURT Plaintiff, HARRIS COUNTY, TEXAS JUDICIAL DISTRICT PLAINTIFF’S RESPONSES TO DEFENDANTS’ OBJECTIONS TO PLAINTIFF’S SUMMARY JUDGMENT RESPONSE EVIDENCE Plaintiff RSS MSBAM2014C-17-TX-HAH, LLC (“Plaintiff”), by its undersigned counsel, files its Responses to Defendants’ Objections to Plaintiff's Summary Judgment Response Evidence (the “Objections”’) and respectfully states as follows: A, Introduction In the Reply in Support of its Traditional and No-Evidence Motion for Partial Summary Judgment, Defendants—understanding that Plaintiff's Response to Defendants’ Traditional and No-Evidence Motion for Partial Summary Judgment (the “Response”) overwhelmingly evidences Defendants’ pervasive waste and the Hotel’s deplorable condition and properly sets forth Plaintiff's substantial damages, including the costs incurred correcting waste and lost profits resulting from such waste—resort to blatantly mischaracterizing Plaintiff's evidence and ignoring key arguments set forth in Plaintiff's Response. In similar fashion and in a desperate attempt to prevent the Court from considering certain of Plaintiff's substantial evidence, Defendants improperly seek to exclude such damning evidence. As set forth below, Defendants’ Objections rt should overrule them. Plaintiff's arguments in this regard are set forth in more detail in Plaintiff's Sur-Reply to Defendants’ Reply in Support of Its Traditional and No-Evidence Motion for Partial Summary Judgment. 145470410.1 Responses Ex. A personal knowledge and of $331,795.53 from the capital foundation; assumes facts not in A statement that one disbursal was request it made from the FF&E made provides no factual Reserve Account by the time it reimbursements had been satisfied. RESPONSE: See eceipts and disbursements made April 2017, when Plaintiff accelerated the loan and called all amounts immediately due. Plaintiff's disbursements to Defendants from the capital expenditure account, thereby rendering Tex. R. Evid. 602 inapplicable. Ex. A personal knowledge and Spectrum Field Services (“Spectrum”) as required by the The witness lacks personal Agreement related to the loan for Spectrum report, which is evidence; TEX. R. EVID. 1003 Motion for Partial Summary Best evidence Judgment as Exhibit J, and many others like it. It is my understanding that Spectrum inadmissible. The report speaks for performed a perfunctory itself. no more than 30 minutes as Spectrum was only paid $150 for -2- 145470410.1 ee RESPONSE: In his role as an Asset Manager for Rialto, Mr. Stanton has extensive familiarity with the types of inspections performed by Spectrum Field Services (“Spectrum”) and many others like it, which are required by the Pooling and Servicing Agreement relating to Defendants’ loan. Stanton Aff. at § 14. Accordingly, Mr. Stanton understands how such ctions. Thus, T ike Mr. Stanton’s testimony. Defendants fail to explain why they believe Mr. Stanton’s statements are irrelevant. Indeed, such statements are relevant and will assist the Court with determining Plaintiff's lack of knowledge of the Hotel’s terrible condition in or around April 2017. Stanton Aff. at J 14. Tellingly, Defendants do not explain why they believe Mr. Stanton’s statements are irrelevant; thus, T is inapplicable. Moreover, Defendants misconstrue Mr. Stanton’s statements. He is merely commenting on the scope of the inspection and its st, and not the actual contents of the inspection report. Accordingly, 1003 is likewise Ex. A As part of its damages, Plaintiff personal knowledge and detailed in an Impact Analysis foundation, speculation LW Hospitality Advisors, which are attached to Plaintiff's evidence; TEX. R. EVID. 1003 Best evidence referenced document is irrelevant and inadmissible. The document Prejudicial misleading. The referenced report makes purported profit -3- 145470410.1 only loan payments, not profits made b RESPONSE: Mr. Stanton merely comments that “Plaintiff has suffered certain lost profits detailed in an Impact Analysis and Addenda Letter prepared by LW Hospitality Advisors”— deferring to the experts who prepared the anal S, Stanton Aff. at § 18. Mr. Stanton does not contend that he prepared the Impact Analys and he does not “interpret” such analysis. Nor do Plaintiff’s contend that Mr. Stanton is an expert on the topic. Therefore, T 401 and 702 do not bar Mr. Stanton’s statement. Also, the Impact Analys is relevant because it will as: t the Court with determining the extent of Plaintiff’s lost profits damages, which are clearly supported by case-law. White v. MLMT 2004-BPC1 Carlyle Crossing, LLC, No. 02—10-00233-CV, 2011 WL 3672022 (Tex. App.—Fort Worth Aug. 18, 2011, pet. denied) (mem. op.). That Defendants disagree with the Impact Analysis is not a basi t is irrelevant. Ex. A Sham affidavit admitted at my deposition that many of the items Plaintiff is seeking as damages in this (3) a material point (4) without lawsuit are not waste. To the explanation, the ‘sham affidavit’ contrary, I stated that the items doctrine may be applied.” We it has to perform were caused by HAH’s failure to maintain the under such circumstances.” Lujan The witness’s affidavit executed the material fact about which items of Plaintiff's damages constitute testified in his deposition that “items on the Plaintiff's Deferred HAH’s failure to maintain the -4- 145470410.1 not the same as “waste.” 102:23- 25. When asked whether he equated something (like an its useful life to waste, the witness testimon RESPONSE: Under Texas law, a sham affidavit is one “which directly contradicts, without explanation, [the affiant’s] previous testimony.” Lujan v. Navistar, Inc., 555 S.W.3d 79, 85 (Tex. 2018). The sham affidavit rule does not apply here because Mr. Stanton did not contradict a prior sworn statement of his. Indeed, Mr. Stanton did not contradict any of the deposition testimony Defendants cite. Indeed, Mr. Stanton testified extensively about the Hotel’s condition during his deposition. Stanton Deposition Tr. at 101:15-16 (“I think [waste is] generally negligence, deferred maintenance ligence.””); 109:7-11 (“Because if issues are known about and they’re raised and discussed and action is not taken in spite of communication and knowledge of the issues, then that could absolutely rise to the level of waste.”); 112:25-113:3 (Well, the environmental covenant, Section 12.2, requires [the orrower] to keep the property free of mold and use commercially reasonable efforts to do so. And based on my review of the discovery, that was not done.”); 122:18-22 (“That’s on the her side would be waste, whic expert reports, Stephanie’s cost sheet for deferred maintenance, and also the PIP cost on that front.”); 134:3-7 (Well, first of all, that’s money that could have been used toward the PIP or for deferred maintenance issues that wasn’t generated by the property because of negligence on aresult, the revenue from t Ex.B “T was aware that the Hotel had Haymore mold remediation done in 2015. foundation, speculation, assumes remediation, the company that The witness lacks personal knowledge about the obligations of the hallways and guestrooms and the mold remediation company reconstructing them so they specified in the contract with to rebuild approximately seven to 10 guestrooms, leaving them the remediation company failed to perform its contractual obli -5- 145470410.1 The mold remediation company The witness is speculating. removed.” RESPONSE: Defendants’ Objection is misleading and T 602 is inapplicable. In 2015, Mr. Haymore was the as: ant to the Hotel’s Chief Engineer and had personal knowledge about the Hotel’s condition. Haymore Aff. at § 2. Indeed, he had personal knowledge about what Hotel rooms were not rebuilt after mold remediation efforts and the state of the hallway carpeting at the time. See id. at §5. Mr. Haymo fic terms of the contract with the mold remediation company. Ex.B Haymore accompany any inspectors for personal knowledge and I was employed by Pacifica, I The witness lacks personal was aware from my discussions rooms to show the inspectors The witness’s testimony is areas of the Hotel that had mold problems.” RESPONSE: Mr. Haymore is merely conveying what he was told by an employe n McFarland. Such testimony is not hearsay because what Mr. titutes a statement of an opposing party, which is exempted from hearsay pursuant to T Ex.B Haymore substantial deferred maintenance personal knowledge and for numerous reasons, including that the maintenance department The witness lacks personal their own tools and many machinery and equipment maintenance existed or the hotel’s witness is a hotel maintenance to operate the Hotel as a number witness is speculating. bids to do work at the Hotel because prior bids had not been -6- 145470410.1 ee RESPONSE: Mr. Haymore has personal knowledge about the Hotel’s deferred maintenance and that employees (including himself) often had to bring their own tools to work to make repairs to the Hotel. He also has personal knowledge that requests to fix or replace Hotel components “were refused or ignored.” Further, in his role at the Hotel, he has personal knowledge that certain vendors would refuse to provide bids or do work at the Hotel. Accordingly, T Ex.B “Tam familiar with most of the Haymore personal knowledge and foundation, speculation; TEX. R. Summary Judgment as Exhibit 1 have been done, whether items were maintained, whether items Many of the items on the list were never properly maintained whether items had outlived their boilers, elevators, water pumps, PTACs, bathroom vents, other HVAC ‘stem components and witness is speculating. landscaping. Other items had outlived their usefulness and earlier, such as the phone system stem.” RESPONSE: Mr. Haymore has worked at the hotel for more than eight years, and maintenance that may or may not have taken place at the Hot Haymore Aff. at 7§ 2, 10. He is clearly competent to testify to the set forth in paragraph 10 of his affidavit. Thus, his testimony is proper pursuant to T Ex.B “The water pump for well water Haymore at the Property leaked due to personal knowledge and foundation, speculation; TEX. R. mechanical room. The lobby, system and 38 roof ventilator e repaired or -7- 145470410.1 ee the cause of any musty odor, what limited any ability to divide meeting spaces, or why water was 125 guestrooms located in the entering the hotel. The witness Hotel’s A-Wing lacked adequate faucets remained turned on in guestroom 502 all day every day. speculating. Borrower’s failure to replace all the airwalls separating meeting spaces in the ballroom limited the ability to divide the meeting spaces for multiple groups to use at the same time. Water was entering 11 rooms of the Hotel in the Hotel’s D-Wing when it rained because sloping in the drainage problems, a problem RESPONSE: . Haymore’s affidavit are based As also set forth above, such testimony is proper under T Ex. D “Tt was obvious to me that the Expert Testimony reasonable care of the Hotel.” RESPONSE: Plaintiff does not purport to offer Ms. Mazza as an expert. H job at Rialto Capital Advisors, LLC. Thus, her testimony is pr Ex. D the capital expenditure list they personal knowledge and foundation, speculation The witness lacks personal Summary Judgment (the witnes is speculating. -8- 145470410.1 Almost half of the money spent Evidence, TEX. R. EVID. 1003 Ex List related to mold remediation at the Hotel conducted primarily in 2015. It meaning of the referenced also is apparent from documents violate the parole Defendants spent no more evidence rule. The referenced money on mold remediation and document speaks for itself. mechanical systems from 21, 2017 when the receiver took RESPON: : Ms. Mazza’s testimony in paragr observations of Defendants’ Capital Expenditure List that is attached to their summary judgment motion as Exhibit R. Ms. Mazza is not speculating. Rather, she is commenting about what is reflected on the This is precisely the same improper and T Ex. D “Attached to Plaintiffs personal knowledge and foundation, speculation TEX. R. List. Once you deduct the money The witness lacks personal property improvement plan and for WiFi upgrades, 20-month period, of which no elevators, boilers, water systems, roofs, telephone system, fire protection system, plumbing and landscaping, and minimal amounts were spent on the purchase of some individual PTACs for guest rooms), all of receiver too -9- 145470410.1 ee RESPONSE: Ms. Mazza’s testimony in paragr D merely the information used to create the exhibit is the information p mmarizing and providing observations of information Defe are inapplicable. Ex. D $3.5 million has been and will be failure to maintain the Hotel in a The witness speculatin RESPONSE: Ms. Mazza has personal knowledge about the “almost $3.5 millio because Ms. Mazza has not been designated as an expert is baseless. Similarly, Ms. Mazza is familiar with the bids, work and bills obtained and incurred by to provide a summary of same. Def erit. Ex. D “Tn addition, to maintain the Holiday Inn flag, Plaintiff was forced to do a PIP because HAH obligated to perform.” what HAH failed to do. The witness is speculatin RESPONSE: nts did not perform their PIP b admitted that they did not complete their PIP. Thus, Ms. Mazza’s testimony is not s and Defendants’ admissions. Ex. D “The PIP is largely the same as HAH’s PIP except it reflects foundation, speculation, -10- 145470410.1 the contents of the HAH PIP, as to (such as in the bathrooms) that were not in HAH’s PIP because HAH had failed to perform its PIP, or as to why such items were PIP timely.” witness is speculatin RESPONSE: Again, Ms. Mazza is familiar with both Defendants’ and Plainti upon her review of each and having had discussions with the fra upon the terms of Defendants’ PI applicable. Ex. D “As part of the PIP, Plaintiff will foundation, speculation, approximately 90 rooms that were so badly infested with mold that I understand much of the witnes is speculating. RESPONSE: Ms. Mazza has personal knowledge about what is contained in Plaintiff's PIP and the work that Plaintiffis intending to complete in connection with the PIP. Also, she personally inspected the Hotel and saw first-hand the mold infestation, which would necessitate disposing of mold infested furnishings. Ms. Mazza’s testimony does not consist of speculation but is based . 602 remains inapplicable. Ex. D offers no opinions on any material waste, or the amount of impairment to the value of the RESPONSE: Defendants’ objection to Mr. Daniele’s entire affidavit is curious since they did not move to exclude Mr. Daniele as an expert on the grounds that his opinions are irrelevant and do not pertain to any “material fact in dispute.” Even more curious is Defendants’ assertion that Mr. Daniele’s affidavit and reports “offers no opinions . . . that any condition of the hotel was as a result of waste,” which is a material fact in dispute in this case. To the contrary, Mr. Daniele’s affidavit states, amon other thin s, that (a) “the Hotel is one of the ver_worst in -ll- 145470410.1 physical condition of any hotel I have ever seen” (§j 5); (b) “[t]he Hotel’s suffered from severe deferred maintenance and lack of capital expenditures from the Defendants in this case” ({ 6); and (c) “the mold that existed at the Hotel was the worst I had ever seen in any building.” Accordingly, Defendants’ objection is meritless and T - 401 does not bar Mr. Ex. G RESPONSE: Defendants do not explain how or why Mr. Daniele’s expert reports attached to his affidavit are hearsay, which is telling since Defendants attached reports to their summary judgment motion, including one of Mr. Daniele’s reports (Exh. N) and a report of one of Exh. O). Defendants’ objection is therefore baseless. Cc. Conclusion entirety. -12- 145470410.1 Respectfully submitted, (s/ David M. Neff Skyler M. Howton PERKINS COIE LLP Facsimile: 214-965-7799 (Admitted Pro Hac Vice) (Pro Hac Vice Pending) PERKINS COIE LLP ATTORNEYS FOR PLAINIIFF -13- 145470410.1 Certificate of Service I hereby certify that a true and correct copy of the foregoing was electronically filed with the Clerk of Court and served on the following on August 26, 2019, using electronic notification, Amy C. Falcon Brett W. Chalke Porter Hedges LLP rtorgerson@porterhedges.com dmartin@porterhedges.com /s/ David M. Neff -14- 145470410.1