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CAUSE NO. 2017-
KELLY COLEMAN IN THE DISTRICT COURT
Plaintiff
EMILE NASSAR, ROBERT
CUMMINGS, AND THE BOARD OF
TRUSTEES OF THE PINES
CONDOMINIUM ASSOCIATION, INC.
Defendant .
JUDICIAL DISTRICT
ACTION PREMIER HAULING, LLC
Intervenor
ROBERT WOLFE, CREATIVE
MANAGEMENT COMPANY, KELLY
COLEMAN, AND BILL
WEATHERSTONE D/B/A OMEGA
BUILDERS GROUP, AND LASKA
SANTINO
Defendant . OF HARRIS COUNTY, TEXAS
DEFENDANT PINES CONDOMINIUM ASSOCIATION’S MOTION TO
COMPEL RESPONSES TO REQUESTS FOR PRODUCTION
TO THE HONORABLE COURT:
COMES NOW Defendant the Pines Condominium Association Pines” or
“Defendant” and files this Motion to Compel asking the Court to order Intervenor
Action Premier Hauling (“Intervenor to adequately respond to Defendant’s request
for production and would respectfully show as follows:
BACKGROUND
In this case, Intervenor s sued the Pines on multiple causes of action
including breach of contract, quantum meruit, and fraud based on the alleged failure
EFENDANT THE ONDOMINIUM SSOCIATION OTION TO OMPEL AGE 6
to pay Intervenor for the provision of debris removal services at the Pines
Condominium after Hurricane Harvey
On February , 20, counsel for Defendant sent request for production to
Intervenor The requests for production contained instructions on permissible
objections under Texas law and possible sanctions for failure to adequately respond.
Intervenor’s responses consisted solely of improper objections and references to non
responsive documents that had been previously produced More imp tantly,
Intervenor did not produce a single new document in response to the new discovery
requests
Defendant files this motion, respectfully asking the Court to compel Intervenor
to adequately respond to Defendant requests for production and order Intervenor to
pay Defendant its attorneys fees and costs as sanctions.
ARGUMENT & AUTHORITIES
The purpose of discovery is to seek the truth, so disputes may be decided by
what facts are revealed, not by what facts are concealed. The Texas Rules of Civil
Procedure permit far reaching discovery
A party must complete respon to request for production based on the
information reasonably available to the responding party or the party’s attorney at
See Action Premier Haulings Amended Petition in Intervention, currently on file with the Court.
See Defendant The Pines Condominium Second Request for Production to Intervenor, attached
hereto as Exhibit A
Id. at pg. 1
See Action Premier Hauling, LLC’s Response to the Pines Condominium Association, Inc.’s Second
Request for Production, attached hereto as Exhibit B
Alexson, Inc. v. McIlhany, 798 S.W.2d 550, 555 (Tex. 1990).
Tex. R. Civ. P. 192.3.
EFENDANT THE ONDOMINIUM SSOCIATION OTION OMPEL AGE
the time the response is made, just as the party is required to complete respon to
all written discovery.
When a responding party refuses to comply with a proper discovery request
the party requesting discovery may move for an order compelling the responding
party to respond. Under Texas law, “the party resisting discovery has the burden to
plead and produce evidence supporting his objection to the requested discovery.”
Defendant’s Requestst for Production sought discovery of 30 categories of
documents necessary to evaluate the validity of Intervenor’s claims regarding the
scope, amount, and cost of the services allegedly provided. Primarily, the
discovery sought documentation created by independent sources, such as payment
and billing records, or documents whose veracity is subject to outside inspection such
as tax and permit information.
This information is necessary because, to date, the only documentation
provided by Intervenor as support for their claimed damages are documents which
they themselves created. Defendant has for more than a year, been attempting to
obtain documentation, such as receipts from public or private dump sites, to
independently verify Intervenor’s claims regarding the amount and cost of debris
removal from the Pines. However, despite acknowledging the existence of such
documents at deposition, Intervenor has never produced them and now claims that
Tex. R. Civ. P. 193.1.
Tex. R. Civ. P. 215.1(b).
10 State v. Lowry, 802 S.W.2d 669, 671 (Tex. 1991); Jordan v. Court of Appeals for the Fourth Supreme
Judicial District, 701 S.W.2d 644, 648 49 (Tex. 1985).
See Exhibit A
EFENDANT THE ONDOMINIUM SSOCIATION OTION OMPEL AGE
such documents are no longer in their possession. As such, Defendant’s discovery
requests were specifically tailored to obtain information which Intervenor is require
by law to keep and which would corroborate or refute the statements made by
Intervenor and its agents. For example, one of Defendants discovery requests sought
driver timecards, operational logs, and IRS 1099 forms to determine whether the
information Intervenor submitted to the IRS regarding their use of independent
contractors matched the amounts they charged to the Pines. In response, Intervenor
stated that the request was irrelevant harassing, and an invasion of privacy
Defendant also requested, based on Intervenor’s failure to produce the dump tickets
themselves, payment records demonstrating the amounts that they allegedly paid to
the dumps so that Defendant could verify whether such payments match the number
of truck loads Intervenor purportedly removed. Intervenor once again claimed this
request was irrelevant and di not produce any responsive documents.
EXPENSES IN MOTION
Defendant has incurred expenses in preparing and filing this motion to obtain
relief. Under Texas Rule of Civil Procedure 215.1(d), Defendant is entitled to
reasonable expenses incurred in obtaining the order, including attorneys’ fees.
See Deposition of Matt Moody, attached hereto as Exhibit C at pg. 149. See also eposition of Robert Cernosek
attached hereto as Exhibit D at pg. 10.
See Exhibit A
See Exhibit B
See Exhibit A
See Exhibit B
EFENDANT THE ONDOMINIUM SSOCIATION OTION OMPEL AGE
CONCLUSION
Defendant’s discovery requests are within the scope of discovery permitted by
Texas Rule of Civil Procedure 192.3. Even though Defendant’s requests were proper,
Plaintiff refused to comply with the ules, and failed to adequately respond to the
discovery requests. Accordingly, the ourt should compel Intervenor to respond to
Defendant’s discovery requests
PRAYER
Defendant the Pines Condominium Association pray that the Court grant its
Motion to Compel, and for any other relief to which may be entitled.
Respectfully submitted,
OBERTS ARKEL EINBERG UTLER AILEY
REGORY ODKIN
TATE AR 24002146
EN AMEL
TATE AR 24103198
ROBERTS MARKEL WEINBERG BUTLER
HAILEY
OST AK LVD TH LOOR
OUSTON
ELEPHONE (713)
ACSIMILE (713)
GGODKIN RMWBH COM
BHAMEL RMWBH COM
ATTORNEYS FOR THE PINES
CONDOMINIUM ASSOCIATION INC.,
CREATIVE MANAGEMENT COMPANY,
ROBERT WOLFE, AND LASKA SANTINO
18Tex. R. Civ. P. 193.4(a); 215.1(b).
EFENDANT THE ONDOMINIUM SSOCIATION OTION OMPEL AGE
CERTIFICATE OF CONFERENCE
April 10, 2020 counsel for Defendant sent a letter to Plaintiffs’ counsel
outlining the issues with their discovery responses as well as the potential penalties for
failing to properly respond. On April 13, counsel for Plaintiffs’ Travis Owens responded
that the discovery sought was irrelevant and therefore no documents would be
produced. Therefore, this motion is OPPOSED.
___________________________________
Ben E. Hamel
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was
served upon the parties listed below by facsimile, messenger, regular U.S. Mail,
certified mail, return receipt requested, commercial delivery, email and/or electronic
service, pursuant to the Tex. R. Civ. P. 21a this the day of April
Travis Owens
travis@owens lawgroup.com
Owens Law Group, PLLC
P.O. Box 8605
The Woodlands, TX 77387
Telephone: (936) 828
Kelly Hartmann
Denise Kruse
khartmann@gallowayfirm.com
dkruse@gallowayfirm.com
Galloway, Johnson, Tompkins, Burr & Smith
1301 McKinney, Suite 1400,
Houston, Texas 77010
Telephone: (713) 599
Ben E. Hamel
EFENDANT THE ONDOMINIUM SSOCIATION OTION OMPEL AGE
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CAUSE NO. 2017- KELLY COLEMAN IN THE DISTRICT COURT Plaintiff EMILE NASSAR, ROBERT CUMMINGS, AND THE BOARD OF TRUSTEES OF THE PINES CONDOMINIUM ASSOCIATION, INC. Defendant . JUDICIAL DISTRICT ACTION PREMIER HAULING, LLC Intervenor ROBERT WOLFE, CREATIVE MANAGEMENT COMPANY, KELLY COLEMAN, AND BILL WEATHERSTONE D/B/A OMEGA BUILDERS GROUP, AND LASKA SANTINO Defendant . OF HARRIS COUNTY, TEXAS DEFENDANT PINES CONDOMINIUM ASSOCIATION’S MOTION TO COMPEL RESPONSES TO REQUESTS FOR PRODUCTION TO THE HONORABLE COURT: COMES NOW Defendant the Pines Condominium Association Pines” or “Defendant” and files this Motion to Compel asking the Court to order Intervenor Action Premier Hauling (“Intervenor to adequately respond to Defendant’s request for production and would respectfully show as follows: BACKGROUND In this case, Intervenor s sued the Pines on multiple causes of action including breach of contract, quantum meruit, and fraud based on the alleged failure EFENDANT THE ONDOMINIUM SSOCIATION OTION TO OMPEL AGE 6 to pay Intervenor for the provision of debris removal services at the Pines Condominium after Hurricane Harvey On February , 20, counsel for Defendant sent request for production to Intervenor The requests for production contained instructions on permissible objections under Texas law and possible sanctions for failure to adequately respond. Intervenor’s responses consisted solely of improper objections and references to non responsive documents that had been previously produced More imp tantly, Intervenor did not produce a single new document in response to the new discovery requests Defendant files this motion, respectfully asking the Court to compel Intervenor to adequately respond to Defendant requests for production and order Intervenor to pay Defendant its attorneys fees and costs as sanctions. ARGUMENT & AUTHORITIES The purpose of discovery is to seek the truth, so disputes may be decided by what facts are revealed, not by what facts are concealed. The Texas Rules of Civil Procedure permit far reaching discovery A party must complete respon to request for production based on the information reasonably available to the responding party or the party’s attorney at See Action Premier Haulings Amended Petition in Intervention, currently on file with the Court. See Defendant The Pines Condominium Second Request for Production to Intervenor, attached hereto as Exhibit A Id. at pg. 1 See Action Premier Hauling, LLC’s Response to the Pines Condominium Association, Inc.’s Second Request for Production, attached hereto as Exhibit B Alexson, Inc. v. McIlhany, 798 S.W.2d 550, 555 (Tex. 1990). Tex. R. Civ. P. 192.3. EFENDANT THE ONDOMINIUM SSOCIATION OTION OMPEL AGE the time the response is made, just as the party is required to complete respon to all written discovery. When a responding party refuses to comply with a proper discovery request the party requesting discovery may move for an order compelling the responding party to respond. Under Texas law, “the party resisting discovery has the burden to plead and produce evidence supporting his objection to the requested discovery.” Defendant’s Requestst for Production sought discovery of 30 categories of documents necessary to evaluate the validity of Intervenor’s claims regarding the scope, amount, and cost of the services allegedly provided. Primarily, the discovery sought documentation created by independent sources, such as payment and billing records, or documents whose veracity is subject to outside inspection such as tax and permit information. This information is necessary because, to date, the only documentation provided by Intervenor as support for their claimed damages are documents which they themselves created. Defendant has for more than a year, been attempting to obtain documentation, such as receipts from public or private dump sites, to independently verify Intervenor’s claims regarding the amount and cost of debris removal from the Pines. However, despite acknowledging the existence of such documents at deposition, Intervenor has never produced them and now claims that Tex. R. Civ. P. 193.1. Tex. R. Civ. P. 215.1(b). 10 State v. Lowry, 802 S.W.2d 669, 671 (Tex. 1991); Jordan v. Court of Appeals for the Fourth Supreme Judicial District, 701 S.W.2d 644, 648 49 (Tex. 1985). See Exhibit A EFENDANT THE ONDOMINIUM SSOCIATION OTION OMPEL AGE such documents are no longer in their possession. As such, Defendant’s discovery requests were specifically tailored to obtain information which Intervenor is require by law to keep and which would corroborate or refute the statements made by Intervenor and its agents. For example, one of Defendants discovery requests sought driver timecards, operational logs, and IRS 1099 forms to determine whether the information Intervenor submitted to the IRS regarding their use of independent contractors matched the amounts they charged to the Pines. In response, Intervenor stated that the request was irrelevant harassing, and an invasion of privacy Defendant also requested, based on Intervenor’s failure to produce the dump tickets themselves, payment records demonstrating the amounts that they allegedly paid to the dumps so that Defendant could verify whether such payments match the number of truck loads Intervenor purportedly removed. Intervenor once again claimed this request was irrelevant and di not produce any responsive documents. EXPENSES IN MOTION Defendant has incurred expenses in preparing and filing this motion to obtain relief. Under Texas Rule of Civil Procedure 215.1(d), Defendant is entitled to reasonable expenses incurred in obtaining the order, including attorneys’ fees. See Deposition of Matt Moody, attached hereto as Exhibit C at pg. 149. See also eposition of Robert Cernosek attached hereto as Exhibit D at pg. 10. See Exhibit A See Exhibit B See Exhibit A See Exhibit B EFENDANT THE ONDOMINIUM SSOCIATION OTION OMPEL AGE CONCLUSION Defendant’s discovery requests are within the scope of discovery permitted by Texas Rule of Civil Procedure 192.3. Even though Defendant’s requests were proper, Plaintiff refused to comply with the ules, and failed to adequately respond to the discovery requests. Accordingly, the ourt should compel Intervenor to respond to Defendant’s discovery requests PRAYER Defendant the Pines Condominium Association pray that the Court grant its Motion to Compel, and for any other relief to which may be entitled. Respectfully submitted, OBERTS ARKEL EINBERG UTLER AILEY REGORY ODKIN TATE AR 24002146 EN AMEL TATE AR 24103198 ROBERTS MARKEL WEINBERG BUTLER HAILEY OST AK LVD TH LOOR OUSTON ELEPHONE (713) ACSIMILE (713) GGODKIN RMWBH COM BHAMEL RMWBH COM ATTORNEYS FOR THE PINES CONDOMINIUM ASSOCIATION INC., CREATIVE MANAGEMENT COMPANY, ROBERT WOLFE, AND LASKA SANTINO 18Tex. R. Civ. P. 193.4(a); 215.1(b). EFENDANT THE ONDOMINIUM SSOCIATION OTION OMPEL AGE CERTIFICATE OF CONFERENCE April 10, 2020 counsel for Defendant sent a letter to Plaintiffs’ counsel outlining the issues with their discovery responses as well as the potential penalties for failing to properly respond. On April 13, counsel for Plaintiffs’ Travis Owens responded that the discovery sought was irrelevant and therefore no documents would be produced. Therefore, this motion is OPPOSED. ___________________________________ Ben E. Hamel CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument was served upon the parties listed below by facsimile, messenger, regular U.S. Mail, certified mail, return receipt requested, commercial delivery, email and/or electronic service, pursuant to the Tex. R. Civ. P. 21a this the day of April Travis Owens travis@owens lawgroup.com Owens Law Group, PLLC P.O. Box 8605 The Woodlands, TX 77387 Telephone: (936) 828 Kelly Hartmann Denise Kruse khartmann@gallowayfirm.com dkruse@gallowayfirm.com Galloway, Johnson, Tompkins, Burr & Smith 1301 McKinney, Suite 1400, Houston, Texas 77010 Telephone: (713) 599 Ben E. Hamel EFENDANT THE ONDOMINIUM SSOCIATION OTION OMPEL AGE