Motion to Quash in RED MANGO FC LLC vs. HOWARD GROSSER| Trellis.Law

On July 17, 2012 a Party Discovery was filed involving a dispute between Red Mango Fc Llc, and Grosser, Howard, for CNTR CNSMR COM DEBT in the District Court of Dallas County.

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Filed
13 May 16 P4:43
Gary Fitzsimmons
District Clerk
Dallas District
CAUSE NUMBER DC-12-07867

RED MANGO FC, LLC § IN THE DISTRICT COURT
Plaintiff/Counter Defendant, §
§
vs. § 160th JUDICIAL DISTRICT
§
HOWARD GROSSER and PHROZEN §
ASSETS LLC § DALLAS COUNTY, TEXAS
Defendant/Counter Plaintiff §
and Third-Party Plaintiff. §

PLAINTIFF’S MOTION TO QUASH
DEPOSITION OF SAL RICIONE

Plaintiff asks the Court to quash the deposition notice of Sal Ricione.

A. Introduction & Facts

1. Plaintiff filed this suit for claims of breach of contract; quantum meruit; and unjust
enrichment.

2. Defendant and Third-Party Plaintiff have counterclaims against Plaintiff for breach of
contract; unjust enrichment; fraudulent inducement; fraud; promissory fraud; and negligent
misrepresentation.

3. Counsel for Defendant, Mitchell Kassoff, asked Plaintiff’s counsel, Christianne Edlund,
to provide dates and times that Defendant could take six different depositions of Plaintiff,
including five of its employees and one corporate representative.

4. After extensive communications and coordination, Plaintiff agreed to produce Plaintiff’s
employees for depositions during the week of July 8, 2013 at its counsel’s offices: Mullin Law,
P.C., 2425 North Central Expressway, Suite 200, Richardson Texas 75080.1

5. On May 10, 2013 at 7:12 p.m., Defendant served notice of the deposition of Sal Ricione
for July 10, 2013 at 2:00 p.m. at the offices of Defendant’s local counsel, Chris Akin, located at
Lynn Tillotson Pinker Cox, LLP, 2100 Ross Avenue, Suite 2700, Dallas, Texas 75201.2

6. On May 13, 2013, Plaintiff’s counsel, Ms. Edlund, notified Defendant’s counsel that
Plaintiff had not agreed that depositions would be held at Defendant’s counsel’s offices and

1
See Pl.’s Ex. A.
2
See Pl.’s Ex. B.

PLAINTIFF’S MOTION TO QUASH DEPOSITION OF SAL RICIONE PAGE - 1
requested that amended deposition notices be sent. Defendant’s counsel, Mr. Kassoff refused to
3
amend the notices.

B. Argument & Authorities

7. The court should quash the deposition notice because the place designated for Sal
Ricione’s oral deposition is unreasonable. Tex. R. Civ. P. § 199.4; 192.6. Specifically, Plaintiff
agreed to make its deponents available during the week of July 8, 2013 at the offices of Mullin
Law, P.C. Despite this agreement, however, Defendant’s notices seek to conduct all six
depositions at the offices of Defendant’s counsel.

8. This motion is filed by the third business day after service of the notice of deposition
pursuant to Tex. R. Civ. P. § 199.4.

C. Conclusion and Prayer

9. For these reasons, Plaintiff asks the court to set its motion to quash for hearing and,
after the hearing, quash Defendant’s deposition notice.

Respectfully Submitted,

______________________________
Cheryl Mullin
Texas State Bar No. 24037807
Christianne Edlund
Texas State Bar No. 24072083
2425 N. Central Expy., Suite 200
Richardson, Texas 75080
(972) 852-1708 – Telephone
(972) 931-0124 – Facsimile
COUNSEL FOR PLAINTIFF

3
See Pl.’s Ex. C.

PLAINTIFF’S MOTION TO QUASH DEPOSITION OF SAL RICIONE PAGE - 2
CERTIFICATE OF CONFERENCE

Counsel for movant and counsel for respondent have conferred regarding the issues
presented to the Court in this motion and despite best efforts the counsel have not been
able to resolve the matters presented.

Certified to the 16th day of May, 2013 by:

__________________________
Christianne Edlund
CERTIFICATE OF SERVICE
I hereby certify that on May 16, 2013, a true and correct copy of the foregoing
document was served in accordance with Rule 21a to the following parties:

Christopher J. Akin
LYNN TILLOTSON PINKER & COX, LLP
2100 Ross Avenue, Suite 2700
Dallas, Texas 75201

Mitchell J. Kassoff
Two Foster Court
So. Orange, N.J. 07079-1002

COUNSEL FOR DEFENDANT

_________________________________
Christianne Edlund
EXHIBIT A
Christianne Edlund
From: Christianne Edlund
Sent: Friday, May 10, 2013 4:37 PM
To: 'Mitchell J. Kassoff, Attorney at Law'
Cc: 'Chris Akin'; Cheryl Mullin; Jennifer Luette
Subject: RE: Grosser v. Red Mango
Attachments: 20130510 Rule 11.pdf

Dear Mitchell and Chris,

Several things:

 Please see the attached, signed rule‐11 agreement as it relates to updating discovery responses.

 We will plan on making Richard Jensrud, Mandy Gribble, Bob DiBartolomeo, Sal Ricione and Sheri Kastner
available for depositions at Mullin Law’s offices the week of July 8 – 12. We appreciate your offer to produce
Mr. Grosser immediately following Red Mango’s depositions, however, we do not plan to depose Mr. Grosser at
that time. We will most likely take his deposition at a later date.

 I also received the notice of deposition of a Red Mango corporate rep that you emailed me last night and have
forwarded it to my clients for review.

 Please let me know if you consent to the motion for stay in the federal lawsuit as I would like to get this on file
with the court early next week.

Thanks,

Christianne Edlund
Attorney
Mullin Law, PC
2425 N. Central Expy. Ste 200
Richardson, Tx 75080
972‐852‐1708

From: Mitchell J. Kassoff, Attorney at Law [mailto:franchiselawyer@verizon.net]
Sent: Tuesday, May 07, 2013 2:30 PM
To: Christianne Edlund
Cc: 'Chris Akin'; Cheryl Mullin; Jennifer Luette; franchiselawyer@verizon.net
Subject: RE: Grosser v. Red Mango

This is to confirm that you will produce Richard Jensrud, Mandy Gribble, Bob DiBartolomeo, Sal Ricione and Sheri
Kastner the week of July 8 to 12. I will communicate to you the times and dates for the appearance of each witness. Mr.
Grosser will be produced for you to depose following the deposition of the last witness produced by you.

You have still failed to inform me who you will be producing as corporate representatives for depositions. What are the
names and titles of the corporate representatives that will produce that have knowledge to answer each of the following
areas: The topics and areas of knowledge that one or more corporate representatives will have to address in depositions
1
EXHIBIT A
are as follows: all information, documentation and other matters concerning the Petition and Counterclaims, including,
but not limited to, knowledge of Red Mango’s (“Mango”) FDD, knowledge of Mango’s franchise agreement, knowledge
of Mango’s requirements for a store location, knowledge the advantages and disadvantages of different types of Mango
store locations, knowledge of Mango’s the store locations for other Mango franchisees, knowledge of Mango’s store
locations for Mango’s company owned stores, knowledge of Mango’s requirements for a location within a mall,
knowledge of the Galleria Mall in Fla., knowledge of the computation of Mango’s royalty, knowledge of the computation
of Mango’s brand development fund, knowledge of the computation of Mango’s gift card program, knowledge of
electronic transfers from Mango’s franchisees to Mango, knowledge of the computation of Mango’s interest
requirements, knowledge of the computation of the amount of money Mango alleges is due by Mr. Grosser, knowledge
of the computation of Mango’s NSF fees, knowledge of the computation of the goods and services Mango alleges was
accepted by Mr. Grosser without compensating Mango, knowledge as to Mango’s brand, trademarks, trade dress,
alleged proprietary recipes, products, manuals, gift cards and business system is valuable, knowledge as to how Mr.
Grosser used Mango’s brand, trademarks, trade dress, alleged proprietary recipes, products, manuals, gift cards and
business system, knowledge as to how Mango’s alleged injury was a natural, probable and foreseeable consequence of
Mr. Grosser’s alleged breach, knowledge of Mango’s attorney’s fees, costs and expenses for this litigation, knowledge of
all conditions precedent to Mango’s claims have been performed or occurred, knowledge of the different types of
franchises offered by Mango, knowledge of the financial and other information provided to Mr. Grosser, knowledge of
the financial and other information representations made to Mr. Grosser, knowledge of the construction of a Mango
store, knowledge of Load King, knowledge of the number of engagements between Load King and Mango, knowledge of
the types of engagements between Load King and Mango, knowledge of the amount of money that Mango has received
from Load King and the reasons for the payment of this money, knowledge of the amount of money that Load King has
received from Mango and the reasons for the payment of this money, knowledge of Mango’s contractual arrangements
with Load King, knowledge of all complaints known to Mango concerning Load King, knowledge of all complaints known
to Mango concerning the service provided by Load King, knowledge of all communications with Load King concerning
Mr. Grosser’s store, knowledge of the costs to construct a Mango store, knowledge of the time frame to construct a
Mango store, knowledge of the rental expenses for a Mango store, knowledge of all other expenses to run a Mango
store, knowledge of the number of Mango stores that had ever been closed or abandoned, knowledge of the number
of company owned Mango stores, knowledge of the average amount of sales of a Mango store, knowledge of
Mango’s goal to reduce the cost of entry for new stores, knowledge of the average cost of operating as a percentage of
sales, knowledge of the number of stores that Mango expected to open, knowledge of the number of above average
locations in North Broward County, knowledge of the statement made by Mango that Mango would find such a location
for Mr. Grosser, knowledge of a store’s costs of goods as a percentage of sales, knowledge of Mango’s representation
that the Franchise Agreement was being offered on a take it or leave it basis, knowledge of Mango’s representation that
Mr. Grosser should not bother retaining an attorney to propose changes because all proposed changes would be
rejected, knowledge of Mango’s representation that Mr. Grosser had to check the boxes on the form stating that no
representations had been made as a technical requirement, knowledge that Mango never told Mr. Grosser that he
would be waiving any legal rights by signing the Franchise Agreement or the related checklist, knowledge of
Mango’s promise to find an above average store location for Mr. Grosser, knowledge of the broker Mango required
Grosser to employ, knowledge of Mango’s the broker’s recommendation of a location in the Galleria Mall, knowledge of
Mango’s knowledge that Starbuck’s had recently abandoned the very same location as Mr. Grosser’s store, knowledge
of Mango’s failure to inform Mr. Grosser that Starbuck’s had recently abandoned the very same location as Mr.
Grosser’s store, knowledge of the lack of traffic for Mr. Grosser’s store’s location, knowledge of Mango’s furniture,
fixture, equipment, millwork ,casework and contractor recommendation for the build out of Mr. Grosser’s store,
knowledge of Mango’s agreement to hold $7,500 in escrow until complete of the work of Load King, knowledge of
Mango’s payment of the $7,500 that Mango was holding in escrow to Load King, knowledge of why Mango’s released
the $7,500 that it held in escrow to Load King, knowledge of the information provided by Mango to Mr. Grosser that
Mr. Grosser was required to use Load King for the store installation or he risked voiding his warranty on all of the
store’s furniture fixtures and equipment, knowledge of Mango’s representation that Mango would reimburse Mr.
Grosser for the cost of temporary menu signs necessitated by construction delays (which was never done), knowledge
of Mango’s representation that Mr. Grosser’s store required water cooled frozen yogurt dispensing machines (which
cost an additional $30,000), knowledge that no such machines were necessary and the air‐cooled version was entirely
suitable for Mr. Grosser’s location, knowledge of the losses that Mr. Grosser has suffered, knowledge of the losses of

2
EXHIBIT A
other Mango franchisees, knowledge of the store opening assistance provided to Mr. Grosser, knowledge of the pre‐
opening consultation assistance provided to Mr. Grosser, knowledge of the ongoing consultation assistance provided to
Mr. Grosser, knowledge of the advertising provided to Mr. Grosser, knowledge of the marketing provided to Mr.
Grosser, knowledge of the type of (non‐traditional) store that Mr. Grosser had, knowledge of the franchise fee charged
to Mr. Grosser, knowledge of the grand opening advertising fee charged to Mr. Grosser, knowledge of the brand
development fund fee charged to Mr. Grosser and knowledge of the project management fee charged to Mr. Grosser.

For Litigation, Business and Corporate Information concerning Franchising
see www.franatty.cnc.net.

From: Christianne Edlund [mailto:Christianne.Edlund@mullinlawpc.com]
Sent: Tuesday, May 07, 2013 3:14 PM
To: Mitchell J. Kassoff, Attorney at Law
Cc: Chris Akin; Cheryl Mullin; Jennifer Luette; franchiselawyer@verizon.net
Subject: Re: Grosser v. Red Mango

No, in my original email I said The week of July 8 – 12 would be the best week for these depositions. We may
th nd
also be able to do the weeks of July 15 and 22 , however, Mr. DiBartolomeo may not be available during
these weeks, so his would have to be done at a different date.

In other words, everyone is available the week of July 8 through 12th. the weeks of July 15th and 22nd would
also work for all except Bob D. So if the week of July 8 th works, I say we do them all then.

Sent from my iPad

On May 7, 2013, at 12:22 PM, "Mitchell J. Kassoff, Attorney at Law" wrote:

The week of July 8 – 12 would be the best week for these depositions. We may also be able to
do the weeks of July 15th and 22nd, however, Mr. DiBartolomeo may not be available during
these weeks, so his would have to be done at a different date

3
EXHIBIT B
CAUSE NO. DC-12-07867

RED MANGO FC, LLC, § IN THE DISTRICT COURT
§
Plaintiff-Counterdefendant, §
§
v. § 160TH JUDICIAL DISTRICT
§
HOWARD GROSSER and PHROZEN §
ASSETS LLC §
§
Defendant-Counterplaintiff § DALLAS COUNTY, TEXAS
and Third-Party Plaintiff §

DEFENDANT-COUNTERPLAINTIFF’S FIRST NOTICE OF ORAL DEPOSITION

TO: Red Mango FC, LLC, by and through its attorneys of record, Mullin Law, P.C., 2425
N. Central Expressway, Suite 200, Richardson, Texas 75080.

PLEASE TAKE NOTICE that Defendant-Counterplaintiffs Howard Grosser and
Phrozen Assets LLC (“Defendant-Counterplaintiffs”) by and through their attorney of record,
will take the oral deposition of Sal Ricione Wednesday, July 10, 2013, at 2:00 p.m., at the
offices of Lynn Tillotson Pinker Cox, LLP, 2100 Ross Avenue, Suite 2700, Dallas, Texas 75201.
Defendant-Counterplaintiffs reserve the right to change the time and/or date of the deposition.

The deposition will be conducted before a qualified court reporter authorized to
administer oaths and may be videotaped.

Respectfully submitted,

By: /s/Christopher J. Akin
Christopher J. Akin Mitchell J. Kassoff
Texas State Bar Number 00793237 Admitted pro hac vice
LYNN TILLOTSON PINKER COX, LLP Two Foster Court
2100 Ross Avenue, Suite 2700 So. Orange, N.J. 07079-1002
Dallas, Texas 75201 T: 973.762.1776
T: 214.981.3812 Email: franchiselawyer@verizon.net
F: 214.981.3839
Email: cakin@lynnllp.com

ATTORNEYS FOR DEFENDANT-COUNTER PLAINTIFF HOWARD GROSSER AND
THIRD-PARTY PLAINTIFF PHROZEN ASSETS LLC

DEFENDANT-COUNTERPLAINTIFFS’ FIRST NOTICE OF ORAL DEPOSITION PAGE 1 OF 2
EXHIBIT B
CERTIFICATE OF SERVICE

This is to certify that on the 10th day of May, 2013, a true and correct copy of the
foregoing document was forwarded to Plaintiff’s counsel Mullin Law, P.C., 2425 N. Central
Expressway, Suite 200, Richardson, Texas 75080 by email (as agreed to by said counsel).

/s/Mitchell J. Kassoff
Mitchell J. Kassoff

DEFENDANT-COUNTERPLAINTIFFS’ FIRST NOTICE OF ORAL DEPOSITION PAGE 2 OF 2
EXHIBIT C
Christianne Edlund
From: Mitchell J. Kassoff [franchiselawyer@verizon.net]
Sent: Wednesday, May 15, 2013 6:17 PM
To: Christianne Edlund
Cc: Cheryl Mullin; Jennifer Luette; 'Chris Akin'; franchiselawyer@verizon.net
Subject: RE: Re:

While I know you have no authority to support your position, I certainly do not wish to burden J. Jordan with such an
issue.

Therefore, unless you wish to proceed with depositions at Mr. Akin’s office that have been noticed pursuant to the state
case, I will serve notices of deposition pursuant to the federal case.

Kindly inform me how you wish to proceed.

For Litigation, Business and Corporate Information concerning Franchising
see www.franatty.cnc.net.

From: Christianne Edlund [mailto:Christianne.Edlund@mullinlawpc.com]
Sent: Wednesday, May 15, 2013 7:00 PM
To: franchiselawyer@verizon.net
Cc: Cheryl Mullin; Jennifer Luette; 'Chris Akin'
Subject: RE: Re:

I’m not going to start pulling and citing case law for your benefit. You can research on your own and we can both
present our arguments in front of Judge Jordan on the subject of reasonableness if need be. If I don’t get an agreement
from you by noon tomorrow that the notices will be changed to reflect our offices as the location, I will file the Motions
to Quash. Again, this should not be an issue of contention that should take up ours and the court’s time, so I’ll ask
again that you be reasonable and change the location on the notices.

Thanks,

Christianne Edlund
Attorney
Mullin Law, PC
2425 N. Central Expy. Ste 200
Richardson, Tx 75080
972‐852‐1708

From: Mitchell J. Kassoff [mailto:franchiselawyer@verizon.net]
Sent: Wednesday, May 15, 2013 5:52 PM
To: Christianne Edlund
Cc: Cheryl Mullin; Jennifer Luette; 'Chris Akin'; franchiselawyer@verizon.net
Subject: RE: Re:

I always follow the rules and decisions of a court.

1
EXHIBIT C
Kindly provide authority showing that the taking of a deposition in the office of a party’s attorney located in the
jurisdiction of the court pursuant to TRCP 199.2(b)(2) is unreasonable.

For Litigation, Business and Corporate Information concerning Franchising
see www.franatty.cnc.net.

From: Christianne Edlund [mailto:Christianne.Edlund@mullinlawpc.com]
Sent: Wednesday, May 15, 2013 6:49 PM
To: franchiselawyer@verizon.net
Cc: Cheryl Mullin; Jennifer Luette; 'Chris Akin'
Subject: RE: Re:

We have a right, under TRCP 192.6 to object to the place of the deposition if the designated place is unreasonable.

This really should not be a controverted issue that needs to be brought in front of court, but if we need to file motions to
quash, we will.

Christianne Edlund
Attorney
Mullin Law, PC
2425 N. Central Expy. Ste 200
Richardson, Tx 75080
972‐852‐1708

From: Mitchell J. Kassoff [mailto:franchiselawyer@verizon.net]
Sent: Wednesday, May 15, 2013 5:38 PM
To: Christianne Edlund
Cc: Cheryl Mullin; Jennifer Luette; 'Chris Akin'; Chris Akin; franchiselawyer@verizon.net
Subject: RE: Re:

Kindly provide authority that the local custom you cite overrules TRCP 199.2(b)(2), which clearly provides a proper venue
in Mr. Akins’ office.

For Litigation, Business and Corporate Information concerning Franchising
see www.franatty.cnc.net.

From: Christianne Edlund [mailto:Christianne.Edlund@mullinlawpc.com]
Sent: Wednesday, May 15, 2013 6:34 PM
To: Mitchell J. Kassoff, Attorney at Law
Cc: Cheryl Mullin; Jennifer Luette; 'Chris Akin'
Subject: RE: Re:

Mitchell,

We agreed to hold Red Mango’s depositions at our offices – not Mr. Akins ‐ and in Dallas, it is the customary practice to
have depositions held in the offices (or the attorney’s offices) of the party being deposed.

2
EXHIBIT C
If there is some compelling need that you have to require that these depositions be held at Mr. Akin’s offices, please let
me know. Otherwise, I will file motions to quash for all notices of depositions tomorrow afternoon if you do not agree
to re‐submit the notices to include the proper deposition location.

Christianne Edlund
Attorney
Mullin Law, PC
2425 N. Central Expy. Ste 200
Richardson, Tx 75080
972‐852‐1708

From: Mitchell J. Kassoff, Attorney at Law [mailto:franchiselawyer@verizon.net]
Sent: Tuesday, May 14, 2013 3:56 PM
To: Christianne Edlund
Cc: Cheryl Mullin; Jennifer Luette; 'Chris Akin'
Subject: Re:

The location of the depositions is in accordance with TRCP 199.2(b)(2).

For Litigation, Business and Corporate Information concerning Franchising
see www.franatty.cnc.net.

On May 13, 2013, at 3:50 PM, Christianne Edlund wrote:

I noticed that all the depo notices have the deposition location at the offices of Lynn Tillotson Pinker & Cox in
downtown. My clients have agreed to depositions at our offices, not Mr. Akin’s offices. Please resend the depo notices
to designate the following location for depositions:

Mullin Law, PC
2425 N. Central Expy. Ste 200
Richardson, Tx 75080

Thanks,

Christianne Edlund
Attorney
Mullin Law, PC
2425 N. Central Expy. Ste 200
Richardson, Tx 75080
972‐852‐1708

MULLIN LAW, PC CONFIDENTIALITY NOTICE
This transmission may be (1) subject to the Attorney-Client Privilege, (2) an attorney work product, or (3) strictly confidential.
If you are not the intended recipient
of this message, you may not disclose, print, copy or disseminate this information.
If you have received this in error, please reply and notify the sender (only) and
delete the message.
Unauthorized interception of this e-mail is a violation of federal criminal law.
3
EXHIBIT C
From: Mitchell J. Kassoff [mailto:franchiselawyer@verizon.net]
Sent: Friday, May 10, 2013 7:11 PM
To: Cheryl Mullin; Christianne Edlund; Jennifer Luette
Cc: 'Chris Akin'; franchiselawyer@verizon.net
Subject:

See initial deposition notices.

Additional deposition notices may be sent.

For Litigation, Business and Corporate Information concerning Franchising
see www.franatty.cnc.net.

Case Info

Judge

JORDAN, JIM Track Judge’s New Case

Case No.

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Document Filed Date

May 16, 2013

Case Filing Date

July 17, 2012

County

Parties

AKIN, CHRIS J Attorney for the Defendant
GROSSER, HOWARD Defendant
LEAL, ABEL Attorney for the Plaintiff
MULLIN, CHERYL Attorney for the Plaintiff
RED MANGO FC LLC Plaintiff
VASSAR, DAVID SLOAN Attorney for the Defendant
Christopher Akin Attorneys for Defendants
Samuel Hardy Attorneys for Plaintiffs
Jeremy Fielding Attorneys for Plaintiffs
Christianne Edlund Attorneys for Plaintiffs
Andrew Hawkins Attorneys for Plaintiffs
John Cox Attorneys for Defendants
Britta Stanton Attorneys for Defendants
David Johnson Attorney

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Party Discovery: RED MANGO FC LLC vs. HOWARD GROSSER

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