Preview
FILED
DALLAS COUNTY
3/21/2014 11:58:13 AM
GARY FITZSIMMONS
DISTRICT CLERK
NO. 11-04489
TOM KARTSOTIS, § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
V. §
§
CLB CAPITAL PARTNERS, LP., §
CLB CAPITAL PARTNERS GP, LLC, § DALLAS COUNTY, TEXAS
RICHARD l. BLOCH, INDIVIDUALLY AND §
AS A TRUSTEE OF THE RICHARD AND §
NANCY BLOCH FAMILY TRUST, and §
NANCY BLOCH AS A TRUSTEE OF THE §
RICHARD AND NANCY BLOCH FAMILY §
TRUST §
§
TH
Defendants. § 134 JUDICIAL DISTRICT
KARTSOTIS' RESPONSE TO THE BLOCH PARTIES' MOTION
FOR LEAVE TO FILE FIFTH AMENDED COUNTERCLAIM,
MOTION FOR CONTINUANCE. AND MOTION TO
SUPPLEMENT THE SUMMARY JUDGMENT RECORD
TO THE HONORABLE JUDGE OF SAID COURT:
Tom Kartsotis, Plaintiff/Counter-Defendant, submits his Response to Counter-Plaintiffs'
Motion for Leave to File Fifth Amended Counterclaim, Counter-Plaintiffs' Verified Motion for
Continuance, and Counter-Plaintiffs' Motion to Supplement the Summary Judgment Record.
Status of Case Prior to the Subject Motions
1. From day one, this has been strictly a contract case. Kartsotis asserted a claim
for breach of the Agreement With Respect to Guaranty Bank Loan, and the Bloch Parties
asserted claims for breach of the Contribution and Indemnification Agreement. Early on in the
case, the Bloch Parties attempted to assert certain tort counterclaims, but the Court correctly
granted summary judgment as to al\ of them, recognizing that this is a contract case.
MHDocs 5015503_1 11321.1
2. The court has disposed of the principal claims made by Kartsotis and the Bloch
Parties on summary judgment. Subject to a ruling on Kartsotis' Motion for Modification and
Clarification of Orders on Motions for Summary Judgment, the only issues remaining for trial
relate to the Bloch Parties' claim for breach of the Contribution and Indemnification Agreement
with respect to the Kettner & Grape loan and the effect of the Put Agreement. The pleadings
and discovery have been closed for about eighteen months. The case is specially set for trial
on April 7, 2014. The trialof the remaining issues should take no more than three days.
The Subject Motions
3. About three weeks before trial, the Bloch Parties moved the court to grant leave
to amend their counterclaim to include an entirely new claim for Kartsotis' alleged inducement of
breach of fiduciary duty by Winstead PC.1 Thereafter, they moved for a continuance of the trial
to accommodate the new claim, and later stillmoved for leave to supplement the summary
judgment record with documents that were just recently produced.
Kartsotls' Opposition
4. Kartsotis vigorously opposes all of these motions. Kartsotis submits that the
court should proceed to trialof the case as presently cast at the current setting. That result
would be fair to all concerned. Under that result, the contract issues will all be disposed of by
final judgment, the parties will be able to appeal any parts of the judgment with which they are
dissatisfied, and the Bloch Parties can assert their new claim in a separate lawsuit, which is
where it belongs.
1 As the court is aware, the Bloch Parties filedlegal malpractice and breach of fiduciary claims against
Winstead PC in a case that was pending in this court. Kartsotis was not a party to that case.
MHDocs 5015503_1 11321.1
Grounds for Opposition
A. Motion for Leave to File Fifth Amended Counterclaim.
(1) Kartsotis is Not Only Surprised, But Astonished, By the Filing of This
Motion.
5. The Bloch Parties correctly observe that a court should not allow a party to
amend its pleadings after the court-imposed deadline for amendments, if granting leave to
amend would operate as a surprise to the adverse party. Kartsotis issurprised to the point of
astonishment by the filing of this motion.
6. The deadline to amend pleadings was July 6, 2012. In paragraph 19 of their
proposed amended counterclaim, the Bloch Parties acknowledge that, by January 3, 2012, they
were aware of the "separate representation" of which they now want to complain. The Bloch
Parties made no attempt to amend their pleadings until two weeks ago. Thus, Kartsotis has
prepared for trialwith the understanding that the issues would be limited to those described
above, in reliance on the long-passed deadline for amendment.
7. The Bloch Parties allege that Kartsotis cannot show surprise at their attempt to
introduce their new tort claim because of unspecified testimony in Lynda Zimmerman's
deposition, which was taken on July 16, 2012, and unspecified affidavits. The relationship
between Kartsotis and Winstead PC, of course, was not a subject of the deposition, except at
best in passing. If Zimmerman's deposition testimony should have made the new claim so
obvious to Kartsotis, itmust have been equally obvious the Bloch Parties. They, however, did
not seek to amend immediately after the deposition, but waited until this month. Kartsotis
submits that this is because the purported existence of the new claim only recently occurred to
the Bloch Parties.
MHDocs 5015503_1 11321.1
(2) The Claim the Bloch Parties Seek to Assert is Entirely New and Unrelated
to this Case.
8. The Bloch Parties' motion acknowledges that a court should refuse an untimely
amendment when it "asserts a new cause of action or defense, and thus is prejudicial on its
face," citing State Bar of Tex. V. Kilpatrick, 874 S.W. 2d 656, 658 (Tex. 1994), which in turn
cites Greenhalgh v. Service L/oyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990). The proposed
amended counterclaim asserts a new cause of action - - inducement of breach of fiduciary duty.
Thus, there is unfair prejudice on the face of the amendment."
9. The Bloch Parties assert that the new tort claim is somehow related to this case
because it arose out of the so-called Restructure in which a Kartsotis entity joined with the Bloch
Parties and Cureton to form CLB Capital Partners, Ltd. This is at best a tenuous connection.
The new claim focuses on Kartsotis' relationship with Winstead PC before the Restructure
closed in 2007. This case has always focused on the relationship between Kartsotis and the
Bloch Parties after the Restructure closed, with the most important events occurring in 2009-
2011. There is no overlap.
10. The Bloch Parties also claim that the facts are essentially undisputed. This is
patently incorrect. Kartsotis denies the Bloch Parties' assertion that Zimmerman's testimony
establishes liability. In any event, Zimmerman's deposition testimony is far from the whole
story. In order to prevail on their new claim, the Bloch Parties have to prove that (a) Winstead
PC breached its fiduciary duty to the Bloch Parties, (b) the breach was a proximate cause of
damages to the Bloch Parties, and (c) the amount of the Bloch Parties' damages, under the
2 In Kilpatrick, a lawyer disciplinary proceeding, the court allowed a trialamendment alleging a new cause
of action for barratry. The supreme court held that the trialcourt did not abuse his discretion inallowing
the amendment, because the claim of barratry was closely akin to the previously alleged grounds for
discipline. The situation here is fardifferent because the proposed new tortclaim has none of the same
elements as the contract claims thatare presently before the court.
MHDocs 5015503_1 11321.1
appropriate measure. All of this was at issue and hotly contested in Bloch v. Winstead, and
Kartsotis would contest itas well. Litigating this claim will require discovery as to matters that
have not been touched on in this case and the testimony of experts who have not been
designated. The claim belongs in a separate action with the customary Level Three schedule
for disposition.
(3) No Legitimate Interests Would Be Served by Granting the Motion.
11. Granting this Motion will not serve any legitimate interest. The parties' right to a
trial of the remaining contract issues after almost three years of litigation would be frustrated if
the new tort issues are added to the case. Allowing the amendment would necessitate
additional delay in resolution of the issues that are presently ripe for trial. Judicial economy
would not be served by granting the motion. To the contrary, judicial economy would be served
by allowing the new claim to proceed on its own track. There is also concern about confusion of
the jury by mixing contract and tort claims that are based on different facts in the same trial.
12. Kartsotis submits that the Bloch Parties filed this motion to again put off the day
of reckoning as to the contract claims, with respect to which Kartsotis will ultimately come out
ahead. This is not a solid basis for granting the motion.
B. Motion for Continuance.
(1) If the Motion for Leave is Denied, There is No Need for Additional
Discovery in This Case.
13. The point made in the preceding paragraph is reinforced by the Bloch Parties'
seeking a continuance almost simultaneously with the filing of the motion for leave. In this
regard, they request 60-90 days' delay in order to conduct discovery for the new claim
discussed above (and magnanimously agree that Kartsotis is entitled to such discovery as well).
However, the discovery with respect to the new claim can be just as well (and indeed better)
MHDocs 5015503_1 11321.1
conducted in a separate action. Accordingly, if the court denies the motion for leave as it
should, this ground for a continuance goes away.
(2) The Timing of the Hearing on the Motion for Leave is Immaterial to Whether
the Court Should Grant a Continuance.
14. The hearing on the motion for leave was always set on March 24. The Bloch
Parties reset the hearing on the motion for continuance for one week (from March 17 to 24)
because Kartsotis' lead counsel was out of town on March 17. The fact that these motions are
set two weeks before trialis not a basis for a continuance. The Bloch Parties should know that
they will have to go to trial at the current setting ifthe motion for leave is denied and should
have planned accordingly.
(3) Recent Supreme Court Cases on Attorneys' Fees Are Not Grounds for a
Continuance.
15. The parties must presumably present their evidence and arguments regarding
attorneys' fees in accordance with applicable law. The two supreme court cases referred to by
the Bloch Parties were decided in 2012 and 2013, respectively. Thus, they have been available
to the parties for some time. Moreover, all these cases hold is that claims for attorneys' fees
must be supported by contemporaneous records of time spent and services performed. No new
briefing is necessary on the issue of attorneys' fees.
(4) Kartsotls Will Be Personally Inconvenienced Bya Continuance.
16. Kartsotis has multiple business interests that require him to travel nationally and
internationally on a frequent basis. Based on the previously announced special setting, he has
set aside the week of April 7 in order to be available for trial,rather than attending to out-of-town
business.
MHDocs 5015503_1 11321.1
(5) The 60-90 Day Continuance Requested by the Bloch Parties Would Not Be
Adequate.
17. As stated above, the Bloch Parties propose to import the Winstead case into this
action. If the new claim was filed separately, as itshould be, it would be a Level Three case
with a 12-18 month track for disposition. Given the schedules of lawyers and witnesses and the
necessity to retain experts, it is notpossible to do everything that would need to be done in less
than a year, at best. Indeed Bloch v. Winstead PC was litigated for two and a half years, and
that could easily happen here. Kartsotis should not be put in the position of having to choose
between a full opportunity to develop his defense to the new claim and his right to go to trialin
this case as currently cast, when both options separately are available.
C. Motion to Supplement Summary Judgment Evidence.
18. The Bloch Parties also seek to supplement the summary judgment record with
additional, unsworn hearsay documents relating to alleged payments that have been made on a
variety of obligations allegedly associated with BBR Obligations. The Bloch Parties have not
sworn to the authenticity of these documents, nor have they sworn that these documents are
actually what is stated in their unsworn pleadings. The documents are simply not summary
judgment evidence, and cannot be treated as such.
19. Given Bloch's inability to testify from his personal knowledge with respect to
previous summary judgment evidence, as pointed out in Kartsotis' motion for modification and
clarification, Kartsotis has serious concerns about the authenticity and admissibility of this
purported new evidence. Since these documents were produced well after the close of
discovery, on the eve of trial,Kartsotis has no way of knowing what they actually represent.
20. Additionally, as stated on page 2 of their Motion, the Bloch Parties have included
payment information with respect to the settlement of a new, unknown lawsuit involving Wells
MHDocs 5015503_1 11321.1
Fargo about which there has never been any summary judgment motion, argument, evidence,
or testimony. This amounts to a new claim upon which the Bloch Parties are informally moving
for summary judgment. According to their Motion, the Bloch Parties have defended, and
settled, yet another lawsuit supposedly relating to the BBR Obligation. However, there has
been no previous disclosure of this litigation nor any discovery related to it. The Bloch Parties
have not even provided any pleadings with respect to the litigation. Kartsotis is without any
information with which to decide whether the claim relates to the BBR Obligation at all.
21. Ifthe Bloch Parties are permitted to re-open up the summary judgment record
and supplement it with these records, Kartsotis must then be permitted to respond to the new
argument and object to the evidence. However, given that only two weeks are left until trial,
Kartsotis does not have enough time under Rule 166(a) in which to respond.
22. In any event, supplementing the summary judgment evidence with this new
purported evidence is unnecessary. Bloch will be present at trial and can simply attempt to
have this evidence admitted at this time. Kartsotis' counsel willhave the opportunity to cross-
examine Bloch regarding the documents and the Court can rule upon itsadmissibility at that
time. Kartsotis will even consent to this portion of the trial being tried before the Court, so as to
reduce confusion of the issues presented to the jury.
Prayer
Kartsotis respectfully prays that the Court deny each of the Bloch Parties' motions and
go forward with the trialthat isspecially set for April 7. Kartsotis also requests such other and
further relief as the Court deems proper.
MHDocs 5015503_1 11321,1
Respectfully submitted,
MUNSCH HARDT KOPF & HARR, P.C.
By: /s/ D. Ronald Reneker
D. Ronald Reneker
State Bar No. 16770000
rreneker@munsch.com
Jason A. Copling
State Bar No. 24036400
jcopling@munsch.com
500 N. Akard Street, Suite 3800
Dallas, Texas 75201-6659
Tel: (214) 855-7500
Fax: (214) 855-7584
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing document has been sent via
facsimile and first class mail, postage prepaid on this 21THday of March, 2014, to the following
counsel of record:
Jeffrey Goldfarb
GOLDFARB BRANHAM LLP
Saint Ann Court
2501 N. Harwood Street, Suite 1801
Dallas, Texas 75201
(214)583-2234 or (214)855-1463 (FAX)
Deborah G. Hankinson
Rick Thompson
J. Carl Cecere
HANKINSON LLP
750 N. St. Paul Street, Suite 1800
Dallas, Texas 75201
(213)754-9140 (FAX)
/s/ D. Ronald Reneker
D. Ronald Reneker
F!lE.
MOTION TO SUPPLEMENT THE
MHDocs 5015503_1 11321.1
Preview
FILED DALLAS COUNTY 3/21/2014 11:58:13 AM GARY FITZSIMMONS DISTRICT CLERK NO. 11-04489 TOM KARTSOTIS, § IN THE DISTRICT COURT OF § Plaintiff, § § V. § § CLB CAPITAL PARTNERS, LP., § CLB CAPITAL PARTNERS GP, LLC, § DALLAS COUNTY, TEXAS RICHARD l. BLOCH, INDIVIDUALLY AND § AS A TRUSTEE OF THE RICHARD AND § NANCY BLOCH FAMILY TRUST, and § NANCY BLOCH AS A TRUSTEE OF THE § RICHARD AND NANCY BLOCH FAMILY § TRUST § § TH Defendants. § 134 JUDICIAL DISTRICT KARTSOTIS' RESPONSE TO THE BLOCH PARTIES' MOTION FOR LEAVE TO FILE FIFTH AMENDED COUNTERCLAIM, MOTION FOR CONTINUANCE. AND MOTION TO SUPPLEMENT THE SUMMARY JUDGMENT RECORD TO THE HONORABLE JUDGE OF SAID COURT: Tom Kartsotis, Plaintiff/Counter-Defendant, submits his Response to Counter-Plaintiffs' Motion for Leave to File Fifth Amended Counterclaim, Counter-Plaintiffs' Verified Motion for Continuance, and Counter-Plaintiffs' Motion to Supplement the Summary Judgment Record. Status of Case Prior to the Subject Motions 1. From day one, this has been strictly a contract case. Kartsotis asserted a claim for breach of the Agreement With Respect to Guaranty Bank Loan, and the Bloch Parties asserted claims for breach of the Contribution and Indemnification Agreement. Early on in the case, the Bloch Parties attempted to assert certain tort counterclaims, but the Court correctly granted summary judgment as to al\ of them, recognizing that this is a contract case. MHDocs 5015503_1 11321.1 2. The court has disposed of the principal claims made by Kartsotis and the Bloch Parties on summary judgment. Subject to a ruling on Kartsotis' Motion for Modification and Clarification of Orders on Motions for Summary Judgment, the only issues remaining for trial relate to the Bloch Parties' claim for breach of the Contribution and Indemnification Agreement with respect to the Kettner & Grape loan and the effect of the Put Agreement. The pleadings and discovery have been closed for about eighteen months. The case is specially set for trial on April 7, 2014. The trialof the remaining issues should take no more than three days. The Subject Motions 3. About three weeks before trial, the Bloch Parties moved the court to grant leave to amend their counterclaim to include an entirely new claim for Kartsotis' alleged inducement of breach of fiduciary duty by Winstead PC.1 Thereafter, they moved for a continuance of the trial to accommodate the new claim, and later stillmoved for leave to supplement the summary judgment record with documents that were just recently produced. Kartsotls' Opposition 4. Kartsotis vigorously opposes all of these motions. Kartsotis submits that the court should proceed to trialof the case as presently cast at the current setting. That result would be fair to all concerned. Under that result, the contract issues will all be disposed of by final judgment, the parties will be able to appeal any parts of the judgment with which they are dissatisfied, and the Bloch Parties can assert their new claim in a separate lawsuit, which is where it belongs. 1 As the court is aware, the Bloch Parties filedlegal malpractice and breach of fiduciary claims against Winstead PC in a case that was pending in this court. Kartsotis was not a party to that case. MHDocs 5015503_1 11321.1 Grounds for Opposition A. Motion for Leave to File Fifth Amended Counterclaim. (1) Kartsotis is Not Only Surprised, But Astonished, By the Filing of This Motion. 5. The Bloch Parties correctly observe that a court should not allow a party to amend its pleadings after the court-imposed deadline for amendments, if granting leave to amend would operate as a surprise to the adverse party. Kartsotis issurprised to the point of astonishment by the filing of this motion. 6. The deadline to amend pleadings was July 6, 2012. In paragraph 19 of their proposed amended counterclaim, the Bloch Parties acknowledge that, by January 3, 2012, they were aware of the "separate representation" of which they now want to complain. The Bloch Parties made no attempt to amend their pleadings until two weeks ago. Thus, Kartsotis has prepared for trialwith the understanding that the issues would be limited to those described above, in reliance on the long-passed deadline for amendment. 7. The Bloch Parties allege that Kartsotis cannot show surprise at their attempt to introduce their new tort claim because of unspecified testimony in Lynda Zimmerman's deposition, which was taken on July 16, 2012, and unspecified affidavits. The relationship between Kartsotis and Winstead PC, of course, was not a subject of the deposition, except at best in passing. If Zimmerman's deposition testimony should have made the new claim so obvious to Kartsotis, itmust have been equally obvious the Bloch Parties. They, however, did not seek to amend immediately after the deposition, but waited until this month. Kartsotis submits that this is because the purported existence of the new claim only recently occurred to the Bloch Parties. MHDocs 5015503_1 11321.1 (2) The Claim the Bloch Parties Seek to Assert is Entirely New and Unrelated to this Case. 8. The Bloch Parties' motion acknowledges that a court should refuse an untimely amendment when it "asserts a new cause of action or defense, and thus is prejudicial on its face," citing State Bar of Tex. V. Kilpatrick, 874 S.W. 2d 656, 658 (Tex. 1994), which in turn cites Greenhalgh v. Service L/oyds Ins. Co., 787 S.W.2d 938, 939 (Tex. 1990). The proposed amended counterclaim asserts a new cause of action - - inducement of breach of fiduciary duty. Thus, there is unfair prejudice on the face of the amendment." 9. The Bloch Parties assert that the new tort claim is somehow related to this case because it arose out of the so-called Restructure in which a Kartsotis entity joined with the Bloch Parties and Cureton to form CLB Capital Partners, Ltd. This is at best a tenuous connection. The new claim focuses on Kartsotis' relationship with Winstead PC before the Restructure closed in 2007. This case has always focused on the relationship between Kartsotis and the Bloch Parties after the Restructure closed, with the most important events occurring in 2009- 2011. There is no overlap. 10. The Bloch Parties also claim that the facts are essentially undisputed. This is patently incorrect. Kartsotis denies the Bloch Parties' assertion that Zimmerman's testimony establishes liability. In any event, Zimmerman's deposition testimony is far from the whole story. In order to prevail on their new claim, the Bloch Parties have to prove that (a) Winstead PC breached its fiduciary duty to the Bloch Parties, (b) the breach was a proximate cause of damages to the Bloch Parties, and (c) the amount of the Bloch Parties' damages, under the 2 In Kilpatrick, a lawyer disciplinary proceeding, the court allowed a trialamendment alleging a new cause of action for barratry. The supreme court held that the trialcourt did not abuse his discretion inallowing the amendment, because the claim of barratry was closely akin to the previously alleged grounds for discipline. The situation here is fardifferent because the proposed new tortclaim has none of the same elements as the contract claims thatare presently before the court. MHDocs 5015503_1 11321.1 appropriate measure. All of this was at issue and hotly contested in Bloch v. Winstead, and Kartsotis would contest itas well. Litigating this claim will require discovery as to matters that have not been touched on in this case and the testimony of experts who have not been designated. The claim belongs in a separate action with the customary Level Three schedule for disposition. (3) No Legitimate Interests Would Be Served by Granting the Motion. 11. Granting this Motion will not serve any legitimate interest. The parties' right to a trial of the remaining contract issues after almost three years of litigation would be frustrated if the new tort issues are added to the case. Allowing the amendment would necessitate additional delay in resolution of the issues that are presently ripe for trial. Judicial economy would not be served by granting the motion. To the contrary, judicial economy would be served by allowing the new claim to proceed on its own track. There is also concern about confusion of the jury by mixing contract and tort claims that are based on different facts in the same trial. 12. Kartsotis submits that the Bloch Parties filed this motion to again put off the day of reckoning as to the contract claims, with respect to which Kartsotis will ultimately come out ahead. This is not a solid basis for granting the motion. B. Motion for Continuance. (1) If the Motion for Leave is Denied, There is No Need for Additional Discovery in This Case. 13. The point made in the preceding paragraph is reinforced by the Bloch Parties' seeking a continuance almost simultaneously with the filing of the motion for leave. In this regard, they request 60-90 days' delay in order to conduct discovery for the new claim discussed above (and magnanimously agree that Kartsotis is entitled to such discovery as well). However, the discovery with respect to the new claim can be just as well (and indeed better) MHDocs 5015503_1 11321.1 conducted in a separate action. Accordingly, if the court denies the motion for leave as it should, this ground for a continuance goes away. (2) The Timing of the Hearing on the Motion for Leave is Immaterial to Whether the Court Should Grant a Continuance. 14. The hearing on the motion for leave was always set on March 24. The Bloch Parties reset the hearing on the motion for continuance for one week (from March 17 to 24) because Kartsotis' lead counsel was out of town on March 17. The fact that these motions are set two weeks before trialis not a basis for a continuance. The Bloch Parties should know that they will have to go to trial at the current setting ifthe motion for leave is denied and should have planned accordingly. (3) Recent Supreme Court Cases on Attorneys' Fees Are Not Grounds for a Continuance. 15. The parties must presumably present their evidence and arguments regarding attorneys' fees in accordance with applicable law. The two supreme court cases referred to by the Bloch Parties were decided in 2012 and 2013, respectively. Thus, they have been available to the parties for some time. Moreover, all these cases hold is that claims for attorneys' fees must be supported by contemporaneous records of time spent and services performed. No new briefing is necessary on the issue of attorneys' fees. (4) Kartsotls Will Be Personally Inconvenienced Bya Continuance. 16. Kartsotis has multiple business interests that require him to travel nationally and internationally on a frequent basis. Based on the previously announced special setting, he has set aside the week of April 7 in order to be available for trial,rather than attending to out-of-town business. MHDocs 5015503_1 11321.1 (5) The 60-90 Day Continuance Requested by the Bloch Parties Would Not Be Adequate. 17. As stated above, the Bloch Parties propose to import the Winstead case into this action. If the new claim was filed separately, as itshould be, it would be a Level Three case with a 12-18 month track for disposition. Given the schedules of lawyers and witnesses and the necessity to retain experts, it is notpossible to do everything that would need to be done in less than a year, at best. Indeed Bloch v. Winstead PC was litigated for two and a half years, and that could easily happen here. Kartsotis should not be put in the position of having to choose between a full opportunity to develop his defense to the new claim and his right to go to trialin this case as currently cast, when both options separately are available. C. Motion to Supplement Summary Judgment Evidence. 18. The Bloch Parties also seek to supplement the summary judgment record with additional, unsworn hearsay documents relating to alleged payments that have been made on a variety of obligations allegedly associated with BBR Obligations. The Bloch Parties have not sworn to the authenticity of these documents, nor have they sworn that these documents are actually what is stated in their unsworn pleadings. The documents are simply not summary judgment evidence, and cannot be treated as such. 19. Given Bloch's inability to testify from his personal knowledge with respect to previous summary judgment evidence, as pointed out in Kartsotis' motion for modification and clarification, Kartsotis has serious concerns about the authenticity and admissibility of this purported new evidence. Since these documents were produced well after the close of discovery, on the eve of trial,Kartsotis has no way of knowing what they actually represent. 20. Additionally, as stated on page 2 of their Motion, the Bloch Parties have included payment information with respect to the settlement of a new, unknown lawsuit involving Wells MHDocs 5015503_1 11321.1 Fargo about which there has never been any summary judgment motion, argument, evidence, or testimony. This amounts to a new claim upon which the Bloch Parties are informally moving for summary judgment. According to their Motion, the Bloch Parties have defended, and settled, yet another lawsuit supposedly relating to the BBR Obligation. However, there has been no previous disclosure of this litigation nor any discovery related to it. The Bloch Parties have not even provided any pleadings with respect to the litigation. Kartsotis is without any information with which to decide whether the claim relates to the BBR Obligation at all. 21. Ifthe Bloch Parties are permitted to re-open up the summary judgment record and supplement it with these records, Kartsotis must then be permitted to respond to the new argument and object to the evidence. However, given that only two weeks are left until trial, Kartsotis does not have enough time under Rule 166(a) in which to respond. 22. In any event, supplementing the summary judgment evidence with this new purported evidence is unnecessary. Bloch will be present at trial and can simply attempt to have this evidence admitted at this time. Kartsotis' counsel willhave the opportunity to cross- examine Bloch regarding the documents and the Court can rule upon itsadmissibility at that time. Kartsotis will even consent to this portion of the trial being tried before the Court, so as to reduce confusion of the issues presented to the jury. Prayer Kartsotis respectfully prays that the Court deny each of the Bloch Parties' motions and go forward with the trialthat isspecially set for April 7. Kartsotis also requests such other and further relief as the Court deems proper. MHDocs 5015503_1 11321,1 Respectfully submitted, MUNSCH HARDT KOPF & HARR, P.C. By: /s/ D. Ronald Reneker D. Ronald Reneker State Bar No. 16770000 rreneker@munsch.com Jason A. Copling State Bar No. 24036400 jcopling@munsch.com 500 N. Akard Street, Suite 3800 Dallas, Texas 75201-6659 Tel: (214) 855-7500 Fax: (214) 855-7584 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing document has been sent via facsimile and first class mail, postage prepaid on this 21THday of March, 2014, to the following counsel of record: Jeffrey Goldfarb GOLDFARB BRANHAM LLP Saint Ann Court 2501 N. Harwood Street, Suite 1801 Dallas, Texas 75201 (214)583-2234 or (214)855-1463 (FAX) Deborah G. Hankinson Rick Thompson J. Carl Cecere HANKINSON LLP 750 N. St. Paul Street, Suite 1800 Dallas, Texas 75201 (213)754-9140 (FAX) /s/ D. Ronald Reneker D. Ronald Reneker F!lE. MOTION TO SUPPLEMENT THE MHDocs 5015503_1 11321.1