Preview
Received and E-Filed for Record
2/1/2019 10:49 AM
Melisa Miller, District Clerk
Montgomery County, Texas
Deputy Clerk, Bobbye Miller
CAUSE NO. 16-11-13805
LABELLA INTERESTS, LP AND
JOSEPH LABELLA, et. al.
IN THE DISTRICT COURT OF
Plaintiffs,
vs. MONTGOMERY COUNTY, TEXAS
MONTGOMERY INDEPENDENT
SCHOOL DISTRICT AND DRYMALLA
CONSTRUCTION COMPANY, INC.,
D2 2 LU UP OD UO? LO OP 2 UO? UL? LO?
Defendants. 410TH JUDICIAL DISTRICT
DRYMALLA’S RESPONSE TO PLAINTIFFS’ OBJECTION
TO SUBPOENA DUCES TECUM PROPOUNDED
TO SAMMY FLESCHLER & MOTION FOR PROTECTION
Defendant Drymalla Construction Company, Inc. (“Drymalla”) in the above-
numbered and styled cause, files this its Response to Plaintiffs’ Objection to Subpoena
Duces Tecum Propounded to Sammy Fleschler and Motion for Protection, and in
support thereof would respectfully show the Court as follows:
INTRODUCTION
1. Drymalla propounded a subpoena duces tecum to the accountant for the
following entities: Labella Interests, LP, Scruffy & Sandy, LLC, Robin’s Nest, Inc.,
Robin’s Nest Equestrian Center, Robin, Lauren, Joseph Corporation, and Joseph J.
LaBella & Associates PLLC (the “Entities”). The subpoena sought production of
various financial records for the Entities, including their tax returns. Plaintiffs have
since filed an objection and motion for protection against the production of the
Entities’ tax returns. Because the Entities’ tax returns are directly relevant and
1027.96material to the damages claimed by Plaintiffs and contain information not duplicative
of other records produced, the Court must overrule Plaintiffs’ objections and deny its
motion for protection.
BACKGROUND
2. Labella Interests, LP and Joseph Labella LaBella (the “LaBella
Plaintiffs”) seek various damages from Defendants, including alleged “lost profits
from Horse Business.”! The LaBella Plaintiffs estimate these lost profits at
$57,000.00.2 To evaluate this portion of the damage model, Drymalla issued a
subpoena duces tecum to obtain the financial records and tax returns of the entities
involved in the LaBella Plaintiffs’ Horse Business. Thereafter, Plaintiffs filed
objections and a motion for protection against the production of the Entities’ tax
returns. To date, no records—tax returns or otherwise—have been produced to
Drymalla in response to the subpoena.
ARGUMENT & AUTHORITIES
A. Texas Law Permits Discovery of Tax Returns
3. The Texas Rules of Civil Procedure permit discovery “regarding any
matter that is not privileged and is relevant to the subject matter of the pending
action.” TEx. R. Civ. P. 192.3(a). “Information is relevant if it tends to make the
existence of a fact that is of consequence to the determination of the action more or
less probable than it would be without the information.” In re Brewer Leasing, Inc.,
255 S.W.3d 708, 712 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (citing Texas Rule
1 Exhibit A, Plaintiffs’ Fifth Amended Response to Request for Disclosure.
2 See id.
2
1027.96of Evidence 401). Where a party’s damage model includes lost profits, financial
records—including tax returns—are particularly relevant. See, e.g., City of McAllen
v. Casso, 13-11-00749-CV, 2013 WL 1281992, at *12 (Tex. App.—Corpus Christi Mar.
28, 2013, no pet.) (finding that tax returns constituted evidence from which lost
profits could be obtained).
4, If the information provided by a tax return would be duplicative of other
information provided, the discovery of tax returns is not permitted. Sears, Roebuck
& Co. v. Ramirez, 824 S.W.2d 558, 559 (Tex. 1992). However, if party requesting such
records demonstrates “that the tax returns are relevant and material to the issues in
the case,” their discovery is fully permissible. In re Brewer, 255 S.W. at 712.
B. Production of the Entities’ Tax Returns is Appropriate Here
5. The tax returns subpoenaed from the Entities’ accountant are directly
relevant and material to the damages claimed in this case. Specifically, obtaining the
Entities’ tax returns would enable Drymalla to evaluate the past profitability of the
LaBella Plaintiffs’ Horse Business. Without this information, Drymalla’s ability to
discredit or refute the lost profits portion of the LaBella Plaintiffs damages is greatly
diminished.
6. The privacy concerns feigned by Plaintiffs concerning the production of
these returns is plainly outweighed by their probative value in this case. See In re
Brewer, 255 S8.W.3d at 714 (stating that tax returns are discoverable “when the
8 Plaintiffs’ objection to the subpoena argues that the production of tax returns are inappropriate
because there are “other adequate methods to ascertain net worth.” Because Drymalla is concerned
with the profitability of the LaBella Horse Business Entities, not their net worth, Plaintiffs’ contention
is inapposite.
3
1027.96pursuit of justice between litigants outweighs protection of their privacy.”) (internal
and citations quotations omitted). And while Plaintiffs argue that the returns are
duplicative and not proper for production, see Ramirez, 824 S.W.2d at 559, this
argument fails because no financial records have been produced in response to
Drymalla’s subpoena or any other discovery. Unless and until alternate financial
records from the Entities are produced, it cannot be argued that the Entites’ tax
returns contain solely duplicative information.
CONCLUSION & PRAYER
As detailed above, the Entities’ tax returns are directly relevant and material
to the damages claimed by Plaintiffs in the suit, and not duplicative of other records
produced. Drymalla has therefore met its burden to demonstrate entitlement to the
Entities’ tax returns, and respectfully prays that the Court (1) overrule Plaintiffs’
Objections to the Subpoena Duces Tecum Propounded to Sammy Fleschler, (2) deny
Plaintiff's Motion for Protection, and (3) grant Drymalla any and all other relief to
which it may show itself to be justly entitled.
[Signature Block on Following Page]
4
1027.96Respectfully submitted,
ANDREWS MYERS, P.C.
By:
WILLIAM W. DAVIDSON
State Bar No. 05446500
WDavidson@andrewsmyers.com
KRISTI BELT
State Bar No. 24026798
KBelt@andrewsmyers.com
LAUREN SCROGGS
State Bar No. 24098397
LScroggs@andrewsmyers.com
1885 Saint James Place, 15th Floor
Houston, Texas 77056
713-850-4200 — Telephone
713-850-4211 — Facsimile
ATTORNEYS FOR DEFENDANT,
DRYMALLA CONSTRUCTION COMPANY, INC.
5
1027.96CERTIFICATE OF SERVICE
This is to certify that a true and correct copy of the foregoing instrument has
been delivered to all counsel of record listed below under the TEXAS RULES OF CIVIL
PROCEDURE on February 1, 2019:
Via E-Mail:
kenna.seiler@theseilerlawfirm.com
megan.rapp@theseilerlawfirm.com
Kenna M. Seiler
Megan Bibb Rapp
The Seiler Law Firm, PLLC
2700 Research Forest Drive, Suite 100
The Woodlands, TX 77381
Attorney for Plaintiffs
Via E-Mail:
pfraissinet@thompsonhorton.com
Phillip D. Fraissinet
Thompson & Horton, LLP
3200 Southwest Freeway, Suite 2000
Houston, TX 77027
Attorney for Defendant,
Montgomery ISD
Via E-Mail: pate@mdjwlaw.com
Gary L. Pate
Martin Disiere Jefferson & Wisdom, LLP
808 Travis, 20‘ Floor
Houston, TX 77002
Attorney for Brooks & Sparks, Inc.
Via E-Mail:
john.cahill@leclairryan.com
John P. Cahill, Jr.
LECLAIR RYAN
1233 West Loop South, Suite 1000
Houston, TX 77027
Attorney for Brooks & Sparks, Inc.
6
1027.96Via E-Mail:
edward.murphy@akerman.com
benjamin.escobar@akerman.com
kate.ferrell@akerman.com
Edward Murphy
Ben Escobar
S. Kate Ferrell
Akerman LLP
1300 Post Oak Blvd., Suite 2500
Houston, Texas 77056
Attorneys for Environmental Allies, Inc.
Via E-Mail:
Kevin.Murphy2@cna.com
austinsco@cna.com
Kevin O. Murphy
Law Office of Brian J. Judis
9500 Arboretum Blvd., Suite 145
Austin, TX 78759
Attorneys for Omega Engineers, Inc.
Pavone
LAUREN SCROGGS
7
1027.96LABELLA INTERESTS, LP, JOSEPH
LABELLA, ODIS JOHNSON, ELEANOR
BAILEY, FRED JOHNSON, AND
ANITA HICKS
V.
MONTGOMERY INDEPENDENT
SCHOOL DISTRICT AND DRYMALLA
CONSTRUCTION COMPANY, INC.
CAUSE NO. 16-11-13805-CV
IN THE DISTRICT COURT
PLAINTIFFS,
§
§
§
§
§ MONTGOMERY COUNTY, TEXAS
§
§
§
§
§
DEFENDANTS 410™ JUDICIAL DISTRICT
PLAINTIFFS’ FIFTH AMENDED RESPONSES TO
DEFENDANTS’ REQUESTS FOR DISCLOSURE
TO: Brooks and Sparks, Inc, by and through their attorney of record Gary L. Pate
Thompson Coe | Riverway, Suite 1400 Houston, Texas 77056.
TO: Drymalla Construction Company, Inc., by and through their attorney of record
Kristi Belt Andrews Myers, PC 3900 Essex Lane Suite 800 Houston, TX 77027.
TO: Enviromental Allies, Inc., by and through their attorney of record Ben Escobar
Akerman LLP 1300 Post Oak Blvd Houston, Texas 77056.
TO: Huckabee & Associates by and through their attorney of record M. Brandon Wadell
Jenevein,P.C. 1601 Elm Street, Suite 1400, Dallas, Texas 75201.
TO: Montgomery County Independent School District by and through their attorney of
record Phillip D. Fraissinet Thompson & Horton, LLP 3200 Southwest Freeway
Suite 2000 Houston, TX 77027.
COME NOW LaBella Interests, LP, Terry Meyerson, as Independent Executrix of the
Estate of Joseph J. LaBella, Jr., Odis Johnson, Eleanor Baily, Fred Johnson, and Anita Hicks,
Plaintiffs, in the above styled and numbered cause of action and serve the following Fifth Amended
Responses to All Defendants’ Requests for Disclosure, as allowed by Texas Rule of Civil
Procedure 194.
a
EXHIBIT ARespectfully submitted,
THE SEILER LAW FIRM, PLLC
Kosa \U CR.
Kenna M. Seiler
State Bar No. 13944250
Megan Bibb Rapp
State Bar No. 24073924
2700 Research Forest Drive, Suite 100
The Woodlands, Texas 77381
kenna.seiler@theseilerlawfirm.com
megan.rapp@theseilerlawfirm.com
(281) 419-7770
(281) 419-7791 — Telecopier
ATTORNEYS FOR PLAINTIFFS
2
EXHIBIT ACERTIFICATE OF SERVICE
Pursuant to Rules 21. and 21a of the Texas Rules of Civil Procedure, I hereby certify that
the original of Plaintiffs’ Fifth Amended Responses to Defendant’s Requests for Disclosure has
been delivered to all interested parties on January 03, 2019, correctly addressed as follows:
William W. Davidson
Kristi Belt
Andrews Myers, PC
3900 Essex Lane
Suite 800
Houston, TX 77027
Phillip D. Fraissinet
Ben Wells
Thompson & Horton, LLP
3200 Southwest Freeway
Suite 2000
Houston, TX 77027-7554
John P. Cahill, Jr.
LeClairRyan
1233 West Loop South, Suite 1000
Houston, TX 77027
Gary L. Pate
Thompson Coe
1 Riverway, Suite 1400
Houston, Texas 77056
Kevin O. Murphy
The Law Office of Brian J. Judis
9500 Arboretum Blvd.
Suite 145
Austin, TX 78759
Ben Escobar
S. Kate Ferrell
Akerman LLP
1300 Post Oak Blvd
Houston, Texas 77056
M. Brandon Waddell
Jenevein, P.C.
1601 Elm Street, Suite 4100
Dallas, Texas 75201
orn DO WU CQ.
Kenna M. Seiler
3
EXHIBIT ARESPONSES TO REQUESTS FOR DISCLOSURE
a. the correct names of the parties to this lawsuit;
RESPONSE: The parties are correctly named.
b. the name, address, and telephone number of any potential parties;
RESPONSE: None
c. the legal theories and, in general, the factual bases of your claims or defenses;
RESPONSE:
On or about September 2004, Plaintiff LaBella Interests, LP, purchased the real property
located at 19012 Keenan Cutoff Road, Montgomery, Texas 77316 (the “LaBella Property”). The
Property was a beautiful 104-acre ranch where Joseph LaBella stabled many horses. The
Property also included a residence, stables, workshops and beautiful fully stocked pond. The
pond on the LaBella Property had a dock with benches and a place to fish. The pond was very
clear and beautiful. The LaBella Property had never flooded prior to construction of a
neighboring property south of LaBella’s Property.
The Johnson Property is located at 19202 Keenan Cutoff Road, Montgomery, Texas
77316 (the “Johnson Property”). This land has been owned by the Johnson family for over 100
years. Prior to the MISD development, the Johnsons used their property for cattle and to spend
time with their family. Like LaBella’s Property, the Johnson Property had a pond. The Johnson
Property had never flooded prior to the construction of MISD’s schools.
Sometime at the beginning of the year 2016, MISD began construction of a new school
located at 19190 Keenan Cutoff Road, Montgomery, Texas 77316. MISD’s general contractor
for the construction of the school is Defendant Drymalla. Defendant Brooks & Sparks designed
the site grading and stormwater pollution prevention plan (“SWPPP”) for the school’s
construction. Drymalla hired subcontractor Environmental Allies to implement Brooks & Sparks
SWPPP. Defendant Huckabee & Associates was the project’s architect.
Defendants brought in an unimaginable amount of dirt to raise the foundation and
construct the school. Defendants also attempted to construct a detention pond to collect excess
rainwater. The detention pond is defective and built incorrectly, resulting in dramatically
increased runoff to the Plaintiffs’ properties. Defendants have constructed a drain from the
detention pond that aims directly toward Plaintiffs’ properties, and part of the drainage system
encroaches on the Johnson Property boundary. Moreover, Defendants did not properly design,
install, or implement the appropriate and required erosion control measures to prevent dirt, silt,
and other similar debris from leaving the construction site.
On or around March 2016, water began to drain from MISD’s property and wash MISD’s
red clay and silt onto and through Plaintiffs’ Property. Plaintiffs immediately informed
4
EXHIBIT ADefendants that excessive water, dirt, silt, and red clay was leaving their construction site, and
Defendants did not act to remedy the situation. Instead, water and debris continued to leave
MISD’s property throughout 2016. As a result, red clay and silt has washed into the creeks and
Plaintiffs’ ponds. Plaintiffs’ ponds filled with feet of red sand and silt to make turn the water a
red mud color. As to LaBella’s Property, eventually the murky water spilled over, and broke
through a berm, on the north side of the pond and deposited red clay and silt all the way through
LaBella’s Property, killing the grasses and trees, and creating a gulley of red silt. Notably, a
horse that drank from the pond after the initial red clay contamination died, which required
LaBella to forego his business stabling horses on his property. Eventually, the water broke
through the berm and created a stream that emptied LaBella’s pond.
Defendants’ actions have substantially decreased the market value of Plaintiffs’
properties in the past and in the future. Plaintiffs’ properties are now filled with red clay and
trash from the build site. A new stream has appeared and leads straight through the Johnson
property directly into LaBella’s Pond and through the berm on the backside of the Property.
Defendants’ activities have increased the flow of water across Plaintiffs’ properties.
Plaintiff Joseph LaBella contacted Defendants to have Defendants attempt to contain or
divert the water that was flowing onto Plaintiffs’ property and request that Defendants remedy
the damages caused to Plaintiffs’ Property. Defendant Drymalla promised to remedy the
situation in writing, but it has failed to do so.
Despite over a year of correspondence and litigation, Defendants have failed to remedy
the situation. Every time it rains, the rainwater continues to rush down and through Plaintiffs’
Properties, carrying with it excessive amounts of dirt and silt, flooding the ponds, destroying the
land and preventing the regrowth of grass and the replanting of trees, and creating additional
damage. Additionally, part of MISD’s development encroaches the boundary of the Johnson
Plaintiffs’ property. Defendants’ actions rise to the level of gross negligence, because they had
notice that red clay, water, and dirt was leaving the MISD property and coming onto the
Plaintiffs’ properties as early as March 2016, and yet, Defendants did nothing to stop it.
Defendants’ failure to act in the face of a known and ongoing risk caused extensive damages to
Plaintiffs’ properties.
Defendants have continuously admitted their wrongdoings in writing, but they have
refused to stop the ongoing harmful water migration and to clean-up the devastation caused by
their improper erosion control measures. Once the water migration is contained then, and only
then, Defendants should pay to restore Plaintiffs’ Propertiesto the state in which it existed prior
to the construction of MISD’s school.
d. the amount and any method of calculating economic damages;
RESPONSE:
5
EXHIBIT APlaintiffs' Actual Damages
Johnson Property Clean-Up Cost $62,350.00
LaBella Property Clean-Up Cost $258,350.00
Approx. $30,000 through
Attorneys' Fees and Expert Fees _| December 2017 (fees are ongoing)
Court Costs $2,170.88
LaBella’s Tree Loss $888,285.00
Approx. $20,000 (will
LaBella’s Fish Loss supplement)
LaBella’s Horse Loss $5,000.00
LaBella’s Lost Profits from Horse
Business $57,000.00 (2016 and 2017)
Johnson Decreased Market Value
and Value of Encroached Land Will Supplement
LaBella Decreased Market Value Will Supplement
Cost of Compensatory Mitigation $3,000,000
In addition to the foregoing damages, Plaintiffs seeks pre- and post-judgment interest, as well as
the maximum amount of exemplary damages allowed by Texas law. Plaintiffs further seek a
permanent injunction preventing Defendants from allowing excess water and debris to leave
MISD’s lot. Additionally, Mr. LaBella seeks specific performance of the contract between
himself and Drymalla pertaining to the clean-up of his property.
e. the name, address, and telephone number of persons having knowledge of relevant
facts, and a brief statement of each identified person’s connection with the case.
RESPONSE:
a. Plaintiffs, who may be contacted through the undersigned counsel. They have
knowledge of the events giving rise to this litigation and the damages caused by
Defendants’ actions.
b. Chad Krenek, Drymalla Employee, who may be contacted through Defendants’
counsel. Mr. Krenek sent correspondence to Mr. LaBella promising to repair
Plaintiffs’ property. Mr. Krenek also has knowledge regarding the construction of
MISD’s school, which resulted in extensive damage to Plaintiffs’ property.
c. Jim Hagermann, Drymalla Employee, who may be contacted through Defendants’
counsel. Mr. Hagermann has knowledge regarding the construction of MISD’s
school, which resulted in extensive damage to Plaintiffs’ property.
d. Mark Mabry, Drymalla Employee, who may be contacted through Defendants’
counsel. Mr. Mabry has knowledge regarding the construction of MISD’s school,
which resulted in extensive damage to Plaintiffs’ property.
e. Beau Rees, MISD Superintendent, who may be contacted through Defendants’
counsel. Mr. Rees has knowledge regarding the construction of the MISD school
that caused damage to Plaintiffs’ property.
6
EXHIBIT ABobby Morris, MISD Assistant Superintendent, who may be contacted through
Defendants’ counsel. Mr. Morris has knowledge regarding the construction of the
MISD school that caused damage to Plaintiffs’ property.
Ronnie Heft, MISD, who may be contacted through Defendants’ counsel. Mr.
eft has knowledge regarding the construction of the MISD school that caused
damage to Plaintiffs’ property.
Susan Alford, President of Berg Oliver Associates, Inc., 14701 St. Mary’s Lane,
Suite 400, Houston, Texas 77079, 281 0898. Ms. Alford has knowledge
regarding Drymalla’s proposal to repair Plaintiffs’ property.
Danny Beal, 1509 N. Plum Creek Dr., Spring, Texas 77386, 713 7572, or
2307. Mr. Beal has knowledge regarding the trees destroyed on the
LaBella Property.
Charlie O’Daniel. 7507 Aqua Lane, Houston, Texas 77072. Mr. O’Daniel has
knowledge regarding the fish contained in Mr. LaBella’s pond prior to the
flooding events caused by Defendants’ negligence. Plaintiffs will supplement
with Mr. O’Daniel’s telephone number
Scott Dingman, 550 Club Drive, Suite 345, Montgomery, Texas 77316, 936
7170. Mr. Dngman offered to purchase the LaBella property at issue, but
withdrew his offer as a result of the flooding caused by Defendants.
Leo Aguilar, 9625 Windfern Road, Houston, Texas 77064. Mr. Aguilar worked
for Defendant Environmental Allies and has knowledge regarding the
construction of the schools, and the implementation of Brooks & Sparks’
stormwater prevention plan.
Frank Brooks Randy Sparks, Matthew Gilbert, James Sims, Robert A. Hill,
Daniel Wagner, and David Barger of Brooks & Sparks, Inc., who may be
contacted through Brooks and Sparks’ counsel. They are employees of Brooks
Sparks, who was the civil engineer for the MISD project. They have knowledge
regarding the construction of the schools.
Christopher Bent, previously with Huckabee & Associates, and currently working
for Omniplan Architects. 1845 Woodall Rodger Freeway #1500, Dallas, Texas
75201, (214) 826 7080. Mr. Bent worked for Huckabee and has knowledge
regarding the construction of MISD’s schools.
Michael Creed, Levi Swinney, and Doug Bensen of Huckabee & Associates,
Hughes Landing Blvd #701, The Woodlands, Texas 77381, (281) 520 4995.
These individuals worked for Huckabee and has knowledge regarding the
construction of MISD’s schools.
Edelmiro Castillo and Patrick Phillips of Omega Engineering, who may be
contacted through counsel. Omega Engineering is a Third Party Defendant who
provided design services related to the detention pond and outfall design.
Josh Williamson, Deanco, Inc. PO Box 299, Pinehurst, Texas 77362, (281) 356
8417. Deanco provided a proposal for drainage revisions and has knowledge
regarding Defendants’ poorly designed and implemented drainage and SWPPP
plan.
7
EXHIBIT ANathan Birdwell and Donald Hall of Value Technologies, (281) 225 8876. Mr.
Birdwell and Mr. Hall have knowledge regarding the survey conducted on the
MISD Property.
Dhani Narejo of Narejo, Inc., 13831 Northwest Freeway, Suite 174, Houston,
Texas 77040, (832) 649 3882. Mr. Narejo worked on issues related to the
development of the detention pond on MISD’s property.
Kerryann Billman with TCEQ, contact information unknown at this time. Ms.
Billman has knowledge regarding MISD’s development.
Simon Bandza, Bobbie Sue Hood, of Terracon Consultants, Inc. 45
South, Building T, Conroe, Texas 77302. Terracon has information regarding the
construction of the MISD schools.
Sammy Fleschler, Royall & Fleschler, 1010 Lamar St #475, Houston, TX 77002,
(713) 654 Mr. Fleschler has information regarding Labella & Associates
tax returns.
Anyone listed in any of the Defendants’ disclosures.
Discovery is ongoing and Plaintiffs will supplement.
for any testifying expert:
qd) the expert’s name, address and telephone number;
RESPONSE: See Plaintiffs’ Designation of Expert Witness, which is
incorporated by reference herein, along with any supplements.
(2) the subject matter on which the expert will testify;
RESPONSE: See Plaintiffs’ Designation of Expert Witness, which is
incorporated by reference herein, along with any supplements.
(3) the general substance of the expert’s mental
impressions and opinions and a brief summary of the
basis for them or if the expert is not retained by,
employed by, or otherwise subject to the control of
the responding party, documents reflecting such
information;
RESPONSE: See Plaintiffs’ Designation of Expert Witness, which is
incorporated by reference herein, along with any supplements.
(4) if the expert is retained by, employed by, or otherwise subject to the
control of the responding party:
(a) all documents, tangible things, reports, models,
8
EXHIBIT Aor data compilations that have been provided to,
reviewed by, or prepared by or for the expert in
nticipation of the expert’s testimony; and
RESPONSE: See Plaintiffs’ Designation of Expert Witness, which is
incorporated by reference herein, along with any supplements.
(b) the expert’s current resume and bibliography.
RESPONSE: See Plaintiffs’ Designation of Expert Witness, which is
incorporated by reference herein, along with any supplements.
any discoverable indemnity and insuring agreements;
RESPONSE: None.
any discoverable settlement agreements;
RESPONSE: None at this time.
any discoverable witness statements;
RESPONSE: None.
in a suit alleging physical or mental injury and damages from the occurrence that is the
subject of the case, all injuries or damages asserted or, in lieu thereof, an authorization
permitting the disclosure of such medical records and bills.
RESPONSE: Not applicable.
in a suit alleging physical or mental injury and damages from the occurrence that is the
subject of the case, all medical records and bills obtained by the responding party by virtue
of an authorization furnished by the requesting party; and
RESPONSE: Not applicable.
the name, address, and telephone number of any person who may be designated as a
responsible third party.
RESPONSE: None.
9
EXHIBIT A
Preview
Received and E-Filed for Record 2/1/2019 10:49 AM Melisa Miller, District Clerk Montgomery County, Texas Deputy Clerk, Bobbye Miller CAUSE NO. 16-11-13805 LABELLA INTERESTS, LP AND JOSEPH LABELLA, et. al. IN THE DISTRICT COURT OF Plaintiffs, vs. MONTGOMERY COUNTY, TEXAS MONTGOMERY INDEPENDENT SCHOOL DISTRICT AND DRYMALLA CONSTRUCTION COMPANY, INC., D2 2 LU UP OD UO? LO OP 2 UO? UL? LO? Defendants. 410TH JUDICIAL DISTRICT DRYMALLA’S RESPONSE TO PLAINTIFFS’ OBJECTION TO SUBPOENA DUCES TECUM PROPOUNDED TO SAMMY FLESCHLER & MOTION FOR PROTECTION Defendant Drymalla Construction Company, Inc. (“Drymalla”) in the above- numbered and styled cause, files this its Response to Plaintiffs’ Objection to Subpoena Duces Tecum Propounded to Sammy Fleschler and Motion for Protection, and in support thereof would respectfully show the Court as follows: INTRODUCTION 1. Drymalla propounded a subpoena duces tecum to the accountant for the following entities: Labella Interests, LP, Scruffy & Sandy, LLC, Robin’s Nest, Inc., Robin’s Nest Equestrian Center, Robin, Lauren, Joseph Corporation, and Joseph J. LaBella & Associates PLLC (the “Entities”). The subpoena sought production of various financial records for the Entities, including their tax returns. Plaintiffs have since filed an objection and motion for protection against the production of the Entities’ tax returns. Because the Entities’ tax returns are directly relevant and 1027.96material to the damages claimed by Plaintiffs and contain information not duplicative of other records produced, the Court must overrule Plaintiffs’ objections and deny its motion for protection. BACKGROUND 2. Labella Interests, LP and Joseph Labella LaBella (the “LaBella Plaintiffs”) seek various damages from Defendants, including alleged “lost profits from Horse Business.”! The LaBella Plaintiffs estimate these lost profits at $57,000.00.2 To evaluate this portion of the damage model, Drymalla issued a subpoena duces tecum to obtain the financial records and tax returns of the entities involved in the LaBella Plaintiffs’ Horse Business. Thereafter, Plaintiffs filed objections and a motion for protection against the production of the Entities’ tax returns. To date, no records—tax returns or otherwise—have been produced to Drymalla in response to the subpoena. ARGUMENT & AUTHORITIES A. Texas Law Permits Discovery of Tax Returns 3. The Texas Rules of Civil Procedure permit discovery “regarding any matter that is not privileged and is relevant to the subject matter of the pending action.” TEx. R. Civ. P. 192.3(a). “Information is relevant if it tends to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the information.” In re Brewer Leasing, Inc., 255 S.W.3d 708, 712 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (citing Texas Rule 1 Exhibit A, Plaintiffs’ Fifth Amended Response to Request for Disclosure. 2 See id. 2 1027.96of Evidence 401). Where a party’s damage model includes lost profits, financial records—including tax returns—are particularly relevant. See, e.g., City of McAllen v. Casso, 13-11-00749-CV, 2013 WL 1281992, at *12 (Tex. App.—Corpus Christi Mar. 28, 2013, no pet.) (finding that tax returns constituted evidence from which lost profits could be obtained). 4, If the information provided by a tax return would be duplicative of other information provided, the discovery of tax returns is not permitted. Sears, Roebuck & Co. v. Ramirez, 824 S.W.2d 558, 559 (Tex. 1992). However, if party requesting such records demonstrates “that the tax returns are relevant and material to the issues in the case,” their discovery is fully permissible. In re Brewer, 255 S.W. at 712. B. Production of the Entities’ Tax Returns is Appropriate Here 5. The tax returns subpoenaed from the Entities’ accountant are directly relevant and material to the damages claimed in this case. Specifically, obtaining the Entities’ tax returns would enable Drymalla to evaluate the past profitability of the LaBella Plaintiffs’ Horse Business. Without this information, Drymalla’s ability to discredit or refute the lost profits portion of the LaBella Plaintiffs damages is greatly diminished. 6. The privacy concerns feigned by Plaintiffs concerning the production of these returns is plainly outweighed by their probative value in this case. See In re Brewer, 255 S8.W.3d at 714 (stating that tax returns are discoverable “when the 8 Plaintiffs’ objection to the subpoena argues that the production of tax returns are inappropriate because there are “other adequate methods to ascertain net worth.” Because Drymalla is concerned with the profitability of the LaBella Horse Business Entities, not their net worth, Plaintiffs’ contention is inapposite. 3 1027.96pursuit of justice between litigants outweighs protection of their privacy.”) (internal and citations quotations omitted). And while Plaintiffs argue that the returns are duplicative and not proper for production, see Ramirez, 824 S.W.2d at 559, this argument fails because no financial records have been produced in response to Drymalla’s subpoena or any other discovery. Unless and until alternate financial records from the Entities are produced, it cannot be argued that the Entites’ tax returns contain solely duplicative information. CONCLUSION & PRAYER As detailed above, the Entities’ tax returns are directly relevant and material to the damages claimed by Plaintiffs in the suit, and not duplicative of other records produced. Drymalla has therefore met its burden to demonstrate entitlement to the Entities’ tax returns, and respectfully prays that the Court (1) overrule Plaintiffs’ Objections to the Subpoena Duces Tecum Propounded to Sammy Fleschler, (2) deny Plaintiff's Motion for Protection, and (3) grant Drymalla any and all other relief to which it may show itself to be justly entitled. [Signature Block on Following Page] 4 1027.96Respectfully submitted, ANDREWS MYERS, P.C. By: WILLIAM W. DAVIDSON State Bar No. 05446500 WDavidson@andrewsmyers.com KRISTI BELT State Bar No. 24026798 KBelt@andrewsmyers.com LAUREN SCROGGS State Bar No. 24098397 LScroggs@andrewsmyers.com 1885 Saint James Place, 15th Floor Houston, Texas 77056 713-850-4200 — Telephone 713-850-4211 — Facsimile ATTORNEYS FOR DEFENDANT, DRYMALLA CONSTRUCTION COMPANY, INC. 5 1027.96CERTIFICATE OF SERVICE This is to certify that a true and correct copy of the foregoing instrument has been delivered to all counsel of record listed below under the TEXAS RULES OF CIVIL PROCEDURE on February 1, 2019: Via E-Mail: kenna.seiler@theseilerlawfirm.com megan.rapp@theseilerlawfirm.com Kenna M. Seiler Megan Bibb Rapp The Seiler Law Firm, PLLC 2700 Research Forest Drive, Suite 100 The Woodlands, TX 77381 Attorney for Plaintiffs Via E-Mail: pfraissinet@thompsonhorton.com Phillip D. Fraissinet Thompson & Horton, LLP 3200 Southwest Freeway, Suite 2000 Houston, TX 77027 Attorney for Defendant, Montgomery ISD Via E-Mail: pate@mdjwlaw.com Gary L. Pate Martin Disiere Jefferson & Wisdom, LLP 808 Travis, 20‘ Floor Houston, TX 77002 Attorney for Brooks & Sparks, Inc. Via E-Mail: john.cahill@leclairryan.com John P. Cahill, Jr. LECLAIR RYAN 1233 West Loop South, Suite 1000 Houston, TX 77027 Attorney for Brooks & Sparks, Inc. 6 1027.96Via E-Mail: edward.murphy@akerman.com benjamin.escobar@akerman.com kate.ferrell@akerman.com Edward Murphy Ben Escobar S. Kate Ferrell Akerman LLP 1300 Post Oak Blvd., Suite 2500 Houston, Texas 77056 Attorneys for Environmental Allies, Inc. Via E-Mail: Kevin.Murphy2@cna.com austinsco@cna.com Kevin O. Murphy Law Office of Brian J. Judis 9500 Arboretum Blvd., Suite 145 Austin, TX 78759 Attorneys for Omega Engineers, Inc. Pavone LAUREN SCROGGS 7 1027.96LABELLA INTERESTS, LP, JOSEPH LABELLA, ODIS JOHNSON, ELEANOR BAILEY, FRED JOHNSON, AND ANITA HICKS V. MONTGOMERY INDEPENDENT SCHOOL DISTRICT AND DRYMALLA CONSTRUCTION COMPANY, INC. CAUSE NO. 16-11-13805-CV IN THE DISTRICT COURT PLAINTIFFS, § § § § § MONTGOMERY COUNTY, TEXAS § § § § § DEFENDANTS 410™ JUDICIAL DISTRICT PLAINTIFFS’ FIFTH AMENDED RESPONSES TO DEFENDANTS’ REQUESTS FOR DISCLOSURE TO: Brooks and Sparks, Inc, by and through their attorney of record Gary L. Pate Thompson Coe | Riverway, Suite 1400 Houston, Texas 77056. TO: Drymalla Construction Company, Inc., by and through their attorney of record Kristi Belt Andrews Myers, PC 3900 Essex Lane Suite 800 Houston, TX 77027. TO: Enviromental Allies, Inc., by and through their attorney of record Ben Escobar Akerman LLP 1300 Post Oak Blvd Houston, Texas 77056. TO: Huckabee & Associates by and through their attorney of record M. Brandon Wadell Jenevein,P.C. 1601 Elm Street, Suite 1400, Dallas, Texas 75201. TO: Montgomery County Independent School District by and through their attorney of record Phillip D. Fraissinet Thompson & Horton, LLP 3200 Southwest Freeway Suite 2000 Houston, TX 77027. COME NOW LaBella Interests, LP, Terry Meyerson, as Independent Executrix of the Estate of Joseph J. LaBella, Jr., Odis Johnson, Eleanor Baily, Fred Johnson, and Anita Hicks, Plaintiffs, in the above styled and numbered cause of action and serve the following Fifth Amended Responses to All Defendants’ Requests for Disclosure, as allowed by Texas Rule of Civil Procedure 194. a EXHIBIT ARespectfully submitted, THE SEILER LAW FIRM, PLLC Kosa \U CR. Kenna M. Seiler State Bar No. 13944250 Megan Bibb Rapp State Bar No. 24073924 2700 Research Forest Drive, Suite 100 The Woodlands, Texas 77381 kenna.seiler@theseilerlawfirm.com megan.rapp@theseilerlawfirm.com (281) 419-7770 (281) 419-7791 — Telecopier ATTORNEYS FOR PLAINTIFFS 2 EXHIBIT ACERTIFICATE OF SERVICE Pursuant to Rules 21. and 21a of the Texas Rules of Civil Procedure, I hereby certify that the original of Plaintiffs’ Fifth Amended Responses to Defendant’s Requests for Disclosure has been delivered to all interested parties on January 03, 2019, correctly addressed as follows: William W. Davidson Kristi Belt Andrews Myers, PC 3900 Essex Lane Suite 800 Houston, TX 77027 Phillip D. Fraissinet Ben Wells Thompson & Horton, LLP 3200 Southwest Freeway Suite 2000 Houston, TX 77027-7554 John P. Cahill, Jr. LeClairRyan 1233 West Loop South, Suite 1000 Houston, TX 77027 Gary L. Pate Thompson Coe 1 Riverway, Suite 1400 Houston, Texas 77056 Kevin O. Murphy The Law Office of Brian J. Judis 9500 Arboretum Blvd. Suite 145 Austin, TX 78759 Ben Escobar S. Kate Ferrell Akerman LLP 1300 Post Oak Blvd Houston, Texas 77056 M. Brandon Waddell Jenevein, P.C. 1601 Elm Street, Suite 4100 Dallas, Texas 75201 orn DO WU CQ. Kenna M. Seiler 3 EXHIBIT ARESPONSES TO REQUESTS FOR DISCLOSURE a. the correct names of the parties to this lawsuit; RESPONSE: The parties are correctly named. b. the name, address, and telephone number of any potential parties; RESPONSE: None c. the legal theories and, in general, the factual bases of your claims or defenses; RESPONSE: On or about September 2004, Plaintiff LaBella Interests, LP, purchased the real property located at 19012 Keenan Cutoff Road, Montgomery, Texas 77316 (the “LaBella Property”). The Property was a beautiful 104-acre ranch where Joseph LaBella stabled many horses. The Property also included a residence, stables, workshops and beautiful fully stocked pond. The pond on the LaBella Property had a dock with benches and a place to fish. The pond was very clear and beautiful. The LaBella Property had never flooded prior to construction of a neighboring property south of LaBella’s Property. The Johnson Property is located at 19202 Keenan Cutoff Road, Montgomery, Texas 77316 (the “Johnson Property”). This land has been owned by the Johnson family for over 100 years. Prior to the MISD development, the Johnsons used their property for cattle and to spend time with their family. Like LaBella’s Property, the Johnson Property had a pond. The Johnson Property had never flooded prior to the construction of MISD’s schools. Sometime at the beginning of the year 2016, MISD began construction of a new school located at 19190 Keenan Cutoff Road, Montgomery, Texas 77316. MISD’s general contractor for the construction of the school is Defendant Drymalla. Defendant Brooks & Sparks designed the site grading and stormwater pollution prevention plan (“SWPPP”) for the school’s construction. Drymalla hired subcontractor Environmental Allies to implement Brooks & Sparks SWPPP. Defendant Huckabee & Associates was the project’s architect. Defendants brought in an unimaginable amount of dirt to raise the foundation and construct the school. Defendants also attempted to construct a detention pond to collect excess rainwater. The detention pond is defective and built incorrectly, resulting in dramatically increased runoff to the Plaintiffs’ properties. Defendants have constructed a drain from the detention pond that aims directly toward Plaintiffs’ properties, and part of the drainage system encroaches on the Johnson Property boundary. Moreover, Defendants did not properly design, install, or implement the appropriate and required erosion control measures to prevent dirt, silt, and other similar debris from leaving the construction site. On or around March 2016, water began to drain from MISD’s property and wash MISD’s red clay and silt onto and through Plaintiffs’ Property. Plaintiffs immediately informed 4 EXHIBIT ADefendants that excessive water, dirt, silt, and red clay was leaving their construction site, and Defendants did not act to remedy the situation. Instead, water and debris continued to leave MISD’s property throughout 2016. As a result, red clay and silt has washed into the creeks and Plaintiffs’ ponds. Plaintiffs’ ponds filled with feet of red sand and silt to make turn the water a red mud color. As to LaBella’s Property, eventually the murky water spilled over, and broke through a berm, on the north side of the pond and deposited red clay and silt all the way through LaBella’s Property, killing the grasses and trees, and creating a gulley of red silt. Notably, a horse that drank from the pond after the initial red clay contamination died, which required LaBella to forego his business stabling horses on his property. Eventually, the water broke through the berm and created a stream that emptied LaBella’s pond. Defendants’ actions have substantially decreased the market value of Plaintiffs’ properties in the past and in the future. Plaintiffs’ properties are now filled with red clay and trash from the build site. A new stream has appeared and leads straight through the Johnson property directly into LaBella’s Pond and through the berm on the backside of the Property. Defendants’ activities have increased the flow of water across Plaintiffs’ properties. Plaintiff Joseph LaBella contacted Defendants to have Defendants attempt to contain or divert the water that was flowing onto Plaintiffs’ property and request that Defendants remedy the damages caused to Plaintiffs’ Property. Defendant Drymalla promised to remedy the situation in writing, but it has failed to do so. Despite over a year of correspondence and litigation, Defendants have failed to remedy the situation. Every time it rains, the rainwater continues to rush down and through Plaintiffs’ Properties, carrying with it excessive amounts of dirt and silt, flooding the ponds, destroying the land and preventing the regrowth of grass and the replanting of trees, and creating additional damage. Additionally, part of MISD’s development encroaches the boundary of the Johnson Plaintiffs’ property. Defendants’ actions rise to the level of gross negligence, because they had notice that red clay, water, and dirt was leaving the MISD property and coming onto the Plaintiffs’ properties as early as March 2016, and yet, Defendants did nothing to stop it. Defendants’ failure to act in the face of a known and ongoing risk caused extensive damages to Plaintiffs’ properties. Defendants have continuously admitted their wrongdoings in writing, but they have refused to stop the ongoing harmful water migration and to clean-up the devastation caused by their improper erosion control measures. Once the water migration is contained then, and only then, Defendants should pay to restore Plaintiffs’ Propertiesto the state in which it existed prior to the construction of MISD’s school. d. the amount and any method of calculating economic damages; RESPONSE: 5 EXHIBIT APlaintiffs' Actual Damages Johnson Property Clean-Up Cost $62,350.00 LaBella Property Clean-Up Cost $258,350.00 Approx. $30,000 through Attorneys' Fees and Expert Fees _| December 2017 (fees are ongoing) Court Costs $2,170.88 LaBella’s Tree Loss $888,285.00 Approx. $20,000 (will LaBella’s Fish Loss supplement) LaBella’s Horse Loss $5,000.00 LaBella’s Lost Profits from Horse Business $57,000.00 (2016 and 2017) Johnson Decreased Market Value and Value of Encroached Land Will Supplement LaBella Decreased Market Value Will Supplement Cost of Compensatory Mitigation $3,000,000 In addition to the foregoing damages, Plaintiffs seeks pre- and post-judgment interest, as well as the maximum amount of exemplary damages allowed by Texas law. Plaintiffs further seek a permanent injunction preventing Defendants from allowing excess water and debris to leave MISD’s lot. Additionally, Mr. LaBella seeks specific performance of the contract between himself and Drymalla pertaining to the clean-up of his property. e. the name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement of each identified person’s connection with the case. RESPONSE: a. Plaintiffs, who may be contacted through the undersigned counsel. They have knowledge of the events giving rise to this litigation and the damages caused by Defendants’ actions. b. Chad Krenek, Drymalla Employee, who may be contacted through Defendants’ counsel. Mr. Krenek sent correspondence to Mr. LaBella promising to repair Plaintiffs’ property. Mr. Krenek also has knowledge regarding the construction of MISD’s school, which resulted in extensive damage to Plaintiffs’ property. c. Jim Hagermann, Drymalla Employee, who may be contacted through Defendants’ counsel. Mr. Hagermann has knowledge regarding the construction of MISD’s school, which resulted in extensive damage to Plaintiffs’ property. d. Mark Mabry, Drymalla Employee, who may be contacted through Defendants’ counsel. Mr. Mabry has knowledge regarding the construction of MISD’s school, which resulted in extensive damage to Plaintiffs’ property. e. Beau Rees, MISD Superintendent, who may be contacted through Defendants’ counsel. Mr. Rees has knowledge regarding the construction of the MISD school that caused damage to Plaintiffs’ property. 6 EXHIBIT ABobby Morris, MISD Assistant Superintendent, who may be contacted through Defendants’ counsel. Mr. Morris has knowledge regarding the construction of the MISD school that caused damage to Plaintiffs’ property. Ronnie Heft, MISD, who may be contacted through Defendants’ counsel. Mr. eft has knowledge regarding the construction of the MISD school that caused damage to Plaintiffs’ property. Susan Alford, President of Berg Oliver Associates, Inc., 14701 St. Mary’s Lane, Suite 400, Houston, Texas 77079, 281 0898. Ms. Alford has knowledge regarding Drymalla’s proposal to repair Plaintiffs’ property. Danny Beal, 1509 N. Plum Creek Dr., Spring, Texas 77386, 713 7572, or 2307. Mr. Beal has knowledge regarding the trees destroyed on the LaBella Property. Charlie O’Daniel. 7507 Aqua Lane, Houston, Texas 77072. Mr. O’Daniel has knowledge regarding the fish contained in Mr. LaBella’s pond prior to the flooding events caused by Defendants’ negligence. Plaintiffs will supplement with Mr. O’Daniel’s telephone number Scott Dingman, 550 Club Drive, Suite 345, Montgomery, Texas 77316, 936 7170. Mr. Dngman offered to purchase the LaBella property at issue, but withdrew his offer as a result of the flooding caused by Defendants. Leo Aguilar, 9625 Windfern Road, Houston, Texas 77064. Mr. Aguilar worked for Defendant Environmental Allies and has knowledge regarding the construction of the schools, and the implementation of Brooks & Sparks’ stormwater prevention plan. Frank Brooks Randy Sparks, Matthew Gilbert, James Sims, Robert A. Hill, Daniel Wagner, and David Barger of Brooks & Sparks, Inc., who may be contacted through Brooks and Sparks’ counsel. They are employees of Brooks Sparks, who was the civil engineer for the MISD project. They have knowledge regarding the construction of the schools. Christopher Bent, previously with Huckabee & Associates, and currently working for Omniplan Architects. 1845 Woodall Rodger Freeway #1500, Dallas, Texas 75201, (214) 826 7080. Mr. Bent worked for Huckabee and has knowledge regarding the construction of MISD’s schools. Michael Creed, Levi Swinney, and Doug Bensen of Huckabee & Associates, Hughes Landing Blvd #701, The Woodlands, Texas 77381, (281) 520 4995. These individuals worked for Huckabee and has knowledge regarding the construction of MISD’s schools. Edelmiro Castillo and Patrick Phillips of Omega Engineering, who may be contacted through counsel. Omega Engineering is a Third Party Defendant who provided design services related to the detention pond and outfall design. Josh Williamson, Deanco, Inc. PO Box 299, Pinehurst, Texas 77362, (281) 356 8417. Deanco provided a proposal for drainage revisions and has knowledge regarding Defendants’ poorly designed and implemented drainage and SWPPP plan. 7 EXHIBIT ANathan Birdwell and Donald Hall of Value Technologies, (281) 225 8876. Mr. Birdwell and Mr. Hall have knowledge regarding the survey conducted on the MISD Property. Dhani Narejo of Narejo, Inc., 13831 Northwest Freeway, Suite 174, Houston, Texas 77040, (832) 649 3882. Mr. Narejo worked on issues related to the development of the detention pond on MISD’s property. Kerryann Billman with TCEQ, contact information unknown at this time. Ms. Billman has knowledge regarding MISD’s development. Simon Bandza, Bobbie Sue Hood, of Terracon Consultants, Inc. 45 South, Building T, Conroe, Texas 77302. Terracon has information regarding the construction of the MISD schools. Sammy Fleschler, Royall & Fleschler, 1010 Lamar St #475, Houston, TX 77002, (713) 654 Mr. Fleschler has information regarding Labella & Associates tax returns. Anyone listed in any of the Defendants’ disclosures. Discovery is ongoing and Plaintiffs will supplement. for any testifying expert: qd) the expert’s name, address and telephone number; RESPONSE: See Plaintiffs’ Designation of Expert Witness, which is incorporated by reference herein, along with any supplements. (2) the subject matter on which the expert will testify; RESPONSE: See Plaintiffs’ Designation of Expert Witness, which is incorporated by reference herein, along with any supplements. (3) the general substance of the expert’s mental impressions and opinions and a brief summary of the basis for them or if the expert is not retained by, employed by, or otherwise subject to the control of the responding party, documents reflecting such information; RESPONSE: See Plaintiffs’ Designation of Expert Witness, which is incorporated by reference herein, along with any supplements. (4) if the expert is retained by, employed by, or otherwise subject to the control of the responding party: (a) all documents, tangible things, reports, models, 8 EXHIBIT Aor data compilations that have been provided to, reviewed by, or prepared by or for the expert in nticipation of the expert’s testimony; and RESPONSE: See Plaintiffs’ Designation of Expert Witness, which is incorporated by reference herein, along with any supplements. (b) the expert’s current resume and bibliography. RESPONSE: See Plaintiffs’ Designation of Expert Witness, which is incorporated by reference herein, along with any supplements. any discoverable indemnity and insuring agreements; RESPONSE: None. any discoverable settlement agreements; RESPONSE: None at this time. any discoverable witness statements; RESPONSE: None. in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all injuries or damages asserted or, in lieu thereof, an authorization permitting the disclosure of such medical records and bills. RESPONSE: Not applicable. in a suit alleging physical or mental injury and damages from the occurrence that is the subject of the case, all medical records and bills obtained by the responding party by virtue of an authorization furnished by the requesting party; and RESPONSE: Not applicable. the name, address, and telephone number of any person who may be designated as a responsible third party. RESPONSE: None. 9 EXHIBIT A