Motion to Compel Discovery in Stacey Diamond, Et Al vs. Bradford Wood Collier| Trellis.Law

On October 09, 2020 a Party Discovery was filed involving a dispute between Diamond, Jeffrey, Diamond, Stacey, and Collier, Bradford Wood, Everett Financial, Inc., Pu Pineda, Henrry Adonias, Texas Ally Real Estate Group, Llc, for Other Civil - Cases in the District Court of Galveston County.

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Filed: 1/20/2021 4:27 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 49875057
By: Shailja Dixit
1/20/2021 4:35 PM

CAUSE NO.: 20-CV-1458

STACEY DIAMOND AND JEFFREY § IN THE DISTRICT COURT OF
DIAMOND §
§
Plaintiffs, §
v. § GALVESTON COUNTY, TEXAS
§
BRADFORD WOOD COLLIER §
§
Defendant. § 122ND JUDICIAL DISTRICT

PLAINTIFFS’ MOTION TO COMPEL RESPONSES TO BUSINESS RECORDS
SUBPOENA AND DEPOSITION BY WRITTEN QUESTIONS FROM NON-PARTY,
TEXAS ALLY REAL ESTATE GROUP, LLC

COMES NOW, Plaintiffs, Stacey Diamond and Jeffrey Diamond (collectively referred to

as “Plaintiffs”), and file this, their Motion to Compel Responses to Business Records Subpoena

and Deposition by Written Questions from Non-Party, Texas Ally Real Estate Group, LLC. In

support thereof, Plaintiff would respectfully show the Court as follows:

BACKGROUND FACTS

This lawsuit arises out of Defendant’s breach of a One to Four Family Residential Contract

(Resale) (“Contract”) for the sale of real property located at 1615 Postoffice Street, Galveston,

Texas 77550 (“1615 Postoffice Street Property”). Specifically, Plaintiffs, as Sellers, and

Defendant, as Buyer, executed, and entered into, the Contract in question on September 5,

2020. Pursuant to the terms of the Contract, the closing of the sale of the Property was

scheduled to take place on September 29, 2020.

Unbeknownst to Plaintiffs, Defendant had also entered into a One to Four Family

Residential Contract (Resale) for the purchase of another property located at 2901 Avenue O,

Galveston, Texas 77550 (“2901 Avenue O Property”), on September 15, 2020.
Following the execution of the Contract, and prior to the date of closing, Plaintiffs

fulfilled all of their obligations under the Contract, and all conditions precedent to Defendant’s

contractual obligation to close the sale of the 1615 Postoffice Property. Defendant, however,

refused to complete the purchase of the 1615 Postoffice Property, and failed to appear for the

closing of the sale on September 29, 2020, claiming that he had insufficient funds to close.

After Defendant’s unexcused breach of the Contract for the sale of the 1615 Postoffice

Property in question, Defendant closed on the sale of the property located at 2901 Avenue O,

Galveston, Texas 77550, for $440,000.00. Notably, the sales price of the 2901 Avenue O

Property was $10,000.00 more than the sales price of the 1615 Postoffice Property, thereby

conclusively negating any argument by Defendant that he had insufficient funds to close the

sale of the 1615 Postoffice Property.

Notably, at all relevant times, Texas Ally Real Estate Group, LLC was the real estate

broker firm that represented Defendant in both of the above-mentioned real estate transactions.

As such, Texas Ally Real Estate Group, LLC has documents, records, and/or information in

its possession that are both relevant to the subject matter of the pending action and

discoverable.

II.

RELEVANT PROCEDURAL HISTORY

On October 12, 2020, Plaintiffs filed suit against Defendant, asserting claims of breach

of contract. On November 5, 2020, Plaintiffs served their first Deposition Upon Written

Questions and Subpoena on non-party, Texas Ally Real Estate Group, LLC, requesting the

production of any and all documents, records, and/or correspondence from January 1, 2019 to

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present, pertaining to the following: (1) 1615 Post Office Street, Galveston, Texas 77550; (2)

Bradford Wood Collier; and/or (3) BWC Studio, Inc. Ex. A.

Shortly thereafter, Plaintiffs served their Second Deposition Upon Written Questions

and Subpoena on non-party, Texas Ally Real Estate Group, LLC, on November 10, 2020. Ex.

B. The Subpoena commanded Texas Ally Real Estate Group, LLC to produce documents

responsive to the following requests:

See Ex. B.

To date, Texas Ally Real Estate Group, LLC has failed to respond to both of the above-

mentioned Subpoenas and Depositions Upon Written and/or file objections to the same. Several

attempts were made to confer with Texas Ally Real Estate Group, LLC regarding its failure to

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timely produce documents responsive to the foregoing Subpoenas to no avail. 1 Specifically,

despite contacting Texas Ally Real Estate Group, LLC on numerous occasions to inquiry as to the

status of the document production, no responses have been received from Texas Ally Real Estate

Group, LLC as of the filing of this Motion.

As such, Plaintiffs respectfully request that the Court compel responses, including the

production of responsive documents, to the above-mentioned Deposition Upon Written Questions

and Subpoenas from non-party, Texas Ally Real Estate Group, LLC.

III.

ARGUMENT AND AUTHORITIES

The purpose of discovery is to seek the truth, so that disputes may be decided by what the

facts reveal, not by what facts are concealed. Axelson v. McIlhany, 798 S.W.2d 55, 555 (Tex.

1990). Discovery may be obtained about any matter relevant to the subject matter of the case. Tex.

R. Civ. P. 192.3. Information is discoverable as long as it appears “reasonably calculated to lead

to the discovery of admissible evidence.” Id. A subpoena is a writ by which a court, at the request

of a party, commands a person to produce documents or other things for discovery. Tex. R. Civ.

P. 176.2.

Under Rule 205.3 of the Texas Rule of Civil Procedure, a party may compel the production

of documents and tangible things from a nonparty by serving a non-party to produce documents

and tangible things by serving a notice and subpoena for the production of documents. Tex. R.

Civ. P. 205.3(a). The nonparty must respond to the notice and discovery subpoena. See Tex. R.

Civ. P. 205.3(d). In fact, a trial court may compel a non-party to respond and produce documents

responsive to a subpoena requesting the production of documents. Tex. R. Civ. P. 215.1(b).

1
The attempts to obtain responses to the above-mentioned Depositions Upon Written Questions and Subpoenas
were made via the document retrieval company, Nell McCallum & Associates, Inc.

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As discussed above, non-party, Texas Ally Real Estate Group, LLC has failed to provide

responses to the Depositions Upon Written Questions, failed to produce documents responsive to

the above-mentioned Subpoenas, failed to formally file objections or assert privileges to the same,

and failed to assert any legal grounds for its non-compliance.

Furthermore, as a result of Texas Ally Real Estate Group, LLC 's failure to assert any

challenge or objections to Plaintiffs’ Subpoenas prior to the time specified for compliance in the

Subpoenas, Texas Ally Real Estate Group, LLC has waived any and all objections to Plaintiffs’

Deposition Upon Written Questions and Subpoenas. Tex. R. Civ. P. 176.6(d), (e).

For the foregoing reasons, Plaintiffs respectfully request that this Court grant Plaintiffs’

Motion to Compel to Responses to Depositions Upon Written Questions and Subpoenas from

Texas Ally Real Estate Group, LLC, and award Plaintiffs the costs and fees associated with the

filing of this Motion.

IV.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiffs, Stacey Diamond and Jeffrey

Diamond, respectfully requests that the Court grant Plaintiffs’ Motion to Compel Responses to

Business Records Subpoena and Deposition by Written Questions from Non-Party, Texas Ally

Real Estate Group, LLC, that the award Plaintiffs the fees and costs associated with the filing of

this Motion, and that the Court grant such other and further relief to which Plaintiffs may show

themselves justly entitled.

[Signature on following page]

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Respectfully submitted,

J. DIAMOND AND ASSOCIATES, PLLC
/s/ Taylor Diamond
Carla Courtney
State Bar No. 24115455
Taylor Diamond
State Bar No. 24109809
730 North Loop
Houston, Texas 77009
Telephone (713) 227-6800
Facsimile (713) 227-6801
Service@jdiamondandassociates.com
Carla@jdiamondandassociates.com
Taylor@jdiamondandassociates.com

ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing instrument was served on all
counsel of record, as listed below, on this 20th day of January, 2021, pursuant to the Texas Rules
of Civil Procedure.

Via E-Mail: sgrossman@hou-law.com
Steven D. Grossman
SHEINESS, GLOVER & GROSSMAN, LLP
4544 Post Oak Place Dr., Ste. 270
Houston, Texas 77027
Attorney for Defendant

/s/ Taylor J. Diamond
Taylor J. Diamond

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Filed: 12/4/2020 1:00 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 48646315
By: Lisa Kelly
12/4/2020 1:07 PM

EXHIBIT "A"
Nell McCallum & Associates Houston, Inc.
2615 Calder Avenue, Suite 111, Beaumont, Texas 77702
409 838-0333 800-859-9249 Fax 409 241-7170

Date: November 11, 2020
Request for: Any & All Records
Patient: Diamond file
Texas Ally Real Estate Group, LLC
1301 South IH 35, Suite 314
Austin, TX 78741

INSTRUCTIONS FOR COMPLYING AND COMPLETING LEGAL
REQUEST FOR RECORDS

· FEES:
Please call for fee approval prior to sending records if your fees exceed $100. We will not
pay for records over $100 unless fees are approved. Reference order number and contact
name below on any invoices. Payment may not be made on invoices submitted after the
records have been sent to our office.

· PROVIDE RECORDS ON CD/OR ELECTRONIC FORMAT (if available):

We will accept paper copies. Provide all documents requested including those
on-site, archived and digitally stored.

If there are no records available, provide an affidavit of no records.

· DEPOSITION BY WRITTEN QUESTIONS/AFFIDAVIT:

1. Complete the attached Written Questions, Affidavit or supply a Certification
indicating whether or not you have the requested records.

2. The Custodian must sign and have their signature notarized. A notary can be
provided if one is not available.

3. Return the Written Questions, Affidavit, or Certification and the requested
records (if available) to our office by the subpoena deadline or as soon as possible.

4. We do not require originals, copies are acceptable.

· SEE ATTACHED FOR RECORDS REQUESTED.

Contact: Melissa Cormier ext. 156 mcormier@nellmc.com
Order No. 42795.004

EXHIBIT "B"
DEPOSITION SUBPOENA TO TESTIFY OR PRODUCE DOCUMENTS OR THINGS

THE STATE OF TEXAS
To any Sheriff or Constable of the State of Texas or other person authorized to serve subpoenas under RULE 176 OF TEXAS
RULES OF CIVIL PROCEDURE. - GREETINGS -
You are hereby commanded to subpoena and summon the following witness(es): Custodian of Records for:
Texas Ally Real Estate Group, LLC, 1301 South IH 35, Suite 314, Austin, TX 78741
to be and appear before a Notary Public for Nell McCallum & Associates, Inc., 2615 Calder, Suite 111, Beaumont, TX 77702,
409.838-0333 or 718 Westcott, Houston, TX 77007, 713.861.0203 or its designated agent, on
December 07
____________________________, 2020 at the office of the custodian and there under oath to make answers of certain written
questions to be propounded to the witness and to bring and produce for inspection and photocopying
Any and all records as described on the attached Exhibit 'A' from January 1, 2020 to Present
and any other such record in the possession, custody or control of the said witness, and every such record to which the witness
may have access, at any and all times whatsoever, then and there to give evidence at the instance of the Plaintiffs, represented by
Jeffrey Diamond, Attorney of Record, Cause No. 20-CV-1458, Galveston County, Texas, 122nd Judicial District.
This Subpoena is issued under and by virtue of Rule 200 and Notice of Deposition Upon Written Questions on file with the
above named court, styled
STACEY DIAMOND AND
JEFFREY DIAMOND

vs.

BRADFORD WOOD COLLIER
and there remain from day to day and time to time until discharged according to law.
WITNESS MY HAND, this 11th day of November, 2020.

__________________________________________
NOTARY PUBLIC

176.8 Enforcement of Subpoena. (a) Contempt. Failure by any person without adequate excuse to obey a subpoena served
upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in
which the subpoena is served, and may be punished by fine or confinement, or both.

OFFICER'S RETURN
Came to hand this ________ day of ________________, 20____, and executed this the _____ day of ____________, 20____,
in the following manner: By delivering to the witness __________________________________________, a true copy hereof.
Returned this ________ day of ________________, 20____.

__________________________________________
PROCESS SERVER

Order No. 42795.004
Filed: 11/10/2020 4:04 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 47985577
By: Ann Vaughn
11/10/2020 4:22 PM
EXHIBIT A
TO: Texas Ally Real Estate Group, LLC

Date Range: January 1, 2020 to Present

1. Any and all documents, records, internal emails, correspondence, communications, and/or
investigation materials that in any way relate to, pertain to, and/or refer to 2901 Ave O,
Galveston, Texas 77550.
2. Any and all documents, records, internal emails, correspondence, communications, and/or
investigation materials that in any way relate to, pertain to, and/or refer to 1615 Postoffice
Street, Galveston, Texas 77550;
3. Any and all documents, records, and/or correspondence pertaining to Bradford Wood
Collier and/or BWC Studio, Inc.;
4. Any and all correspondence to, and from, Bradford Collier;
5. Any and all correspondence to, and from, BWC Studio, Inc.;
6. Any and all correspondence to, and from, Everett Financial, Inc. d/b/a Supreme Lending;
7. Any and all correspondence to, and from, Henrry Pu and/or Juston Martinez;
8. Any and all correspondence to, and from, any financial or investment institution regarding
Bradford Collier and/or BWC Studio, Inc.;
9. Any and all correspondence to, and from, Donna Mithani;
10. Any and all correspondence to, and from, Keller Williams Realty Clear Lake / NASA;
11. Any and all documents, records, internal emails, correspondence, communications, and/or
investigation materials relating in any to way to any mortgage loan application made by,
or on behalf of, Bradford Collier and/or BWC Studio, Inc.

42795-4

Case Info

Judge

Ellisor, John Track Judge’s New Case

Case No.

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Document Filed Date

January 20, 2021

Case Filing Date

October 09, 2020

County

Parties

Carla Courtney Attorney for the Plaintiff
Collier, Bradford Wood Defendant
Diamond, Jeffrey Plaintiff
Diamond, Stacey Plaintiff
Everett Financial, Inc. Defendant
Gabriella E Alonso Attorney for the Defendant
Pu Pineda, Henrry Adonias Defendant
Steven D. Grossman Attorney for the Defendant
Texas Ally Real Estate Group, LLC Defendant
Thomas F. O'Connell Attorney for the Defendant
Taylor Diamond Attorneys for Plaintiffs
Robert Ford Attorneys for Defendants
Keith Anderson Attorneys for Defendants
James Collura Attorneys for Defendants

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Party Discovery: Stacey Diamond, Et Al vs. Bradford Wood Collier

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