Preview
Filed
11 March 31 A11:44
Gary Fitzsimmons
District Clerk
Dallas District
NO. DC-10-01167
SIERRA INVESTMENT ASSOCIATES, § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. § OF DALLAS COUNTY, TEXAS
§
WILSON OFFICE INTERIORS, LLC; §
THE WILSON GROUP, LTD.; ROBERT §
BLOMSTROM; B. DONALD HILL, JR. §
§
Defendants. § 298th JUDICIAL DISTRICT
PLAINTIFF’S RESPONSE TO DEFENDANTS’ EMERGENCY MOTION
TO CLARIFY RULING AND PLAINTIFF’S REQUEST FOR PROTECTIVE ORDER
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW Sierra Investment Associates (“Sierra”) and files this Response to
Defendants’ Emergency Motion to Clarify Ruling combined with Sierra’s Motion for Protective
Order and as grounds for same would show the following:
1. On March 8, 2011, the Court heard Defendants’ Emergency Motion to Compel
Inspection which requested the Court to enter an Order permitting Defendants’ expert witnesses
to attend the inspection along with Defendants and their counsel. The Motion further sought
reasonable and necessary attorneys’ fees incurred by Defendants in connection with filing the
Motion.
2. At the conclusion of the hearing, the Court granted Defendants’ request that their
experts be allowed to inspect Sierra’s warehouse facility which is the subject matter of this
lawsuit. No evidence was presented nor did the Court make any ruling on Defendants’ request
for reasonable attorneys’ fees.
3. Subsequent to the hearing, Sierra’s counsel forwarded a proposed Order to
Defendants’ counsel for comment. A copy of that proposed Order is attached hereto as Exhibit
PLAINTIFF’S RESPONSE TO DEFENDANTS’ EMERGENCY MOTION TO
CLARIFY RULING AND PLAINTIFF’S REQUEST FOR PROTECTIVE ORDER Page 1
“A.”
4. Defendants’ counsel responded to Sierra’s proposed Order by stating the Court
also granted Defendants the right to file their expert’s initial opinions after the inspection and
that Sierra would thereafter be allowed to designate rebuttal experts. Sierra’s counsel disagreed
with Defendants’ counsels’ recollection of the hearing because Sierra had previously filed on
March 4, 2011, a Motion to Exclude Testimony. In fact, Sierra’s counsel requested it be allowed
to present its Motion on March 8, 2011, at the same time as Defendants’ Motion to Compel.
However, Defendants’ counsel refused that request. It is Sierra’s position that since its Motion
to Exclude Testimony has not been set and heard by the Court, it could not have been overruled
at this time. Additionally, it is Sierra’s position that the Court has not ruled on allowing
Defendants’ experts to file experts’ reports because that relief was not mentioned, referenced, or
argued in Defendants’ Emergency Motion to Compel Inspection which was heard on March 8,
2011.
PROTECTIVE RELIEF
5. On several occasions when counsel discussed scheduling of discovery, Sierra has
apprised Defendants’ counsel that a Premises Liability Release would need to be executed by
parties at the time of the inspection. At no time did Defendants’ counsel indicate the inspecting
parties would not execute a Release. However, on the morning of March 22, 2011, Defendants’
counsel advised they would not execute a Release unless Sierra also released Defendants and
their representatives for any conduct during the inspection. Sierra seeks a protective order by the
Court pursuant to Rule 192.6 of the Texas Rules of Civil Procedure requiring attendees of the
inspection to execute a simple Release and Indemnity Agreement as attached hereto Exhibit “B”,
or, in the alternative, require Defendants to file a bond or provide insurance coverage.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ EMERGENCY MOTION TO
CLARIFY RULING AND PLAINTIFF’S REQUEST FOR PROTECTIVE ORDER Page 2
Defendants had been advised that the property has been vacant for approximately three years and
there is no certificate of occupancy covering the premises. (See Affidavit of Wesley Jeanes,
attached hereto as Exhibit “C”). Furthermore, Defendants have been advised that Sierra is
cognizant of the allegations in their counterclaims regarding the existence of hazardous defects
on the property. Sierra has been advised that Defendants’ experts will conduct “testing” during
the inspection but Defendants do not advise as to the nature or methodology of that testing.
Sierra would show the execution of the Release covering the inspection process is necessary
because of the litigious nature of Defendants as evidenced by their counterclaims and alleged
affirmative defenses on file herein.
WHEREFORE, PREMISES CONSIDERED, Sierra prays upon hearing, the Court grant
its request and order the Defendants’ attendees execute the Release in the form attached hereto as
Exhibit “B.”
Sierra requests all such and further relief both at law and in equity to which it may show
itself justly entitled.
Respectfully submitted,
GLAST, PHILLIPS & MURRAY
By: Charles C. Frederiksen
Charles C. Frederiksen
State Bar No. 07413300
14801 Quorum Drive, Suite 500
Dallas, Texas 75254
(972) 419-8300 (Telephone)
(972) 419-8329 (Fax)
cfrederiksen@gpm-law.com
ATTORNEYS FOR PLAINTIFF
PLAINTIFF’S RESPONSE TO DEFENDANTS’ EMERGENCY MOTION TO
CLARIFY RULING AND PLAINTIFF’S REQUEST FOR PROTECTIVE ORDER Page 3
CERTIFICATE OF CONFERENCE
This is to certify that counsel for Plaintiff and counsel for all Defendants have conferred
regarding the substance and merits of this Motion and counsel for all Defendants oppose this
Motion.
Charles C. Frederiksen
Charles C. Frederiksen
CERTIFICATE OF SERVICE
I certify that on March 31, 2011, a true and correct copy of this document was served on
the following in accordance with the TEXAS RULES OF CIVIL PROCEDURE.
John Helms, Esq. Evelyn A. Yaeger, Esq.
Manuel Diaz, Esq. GIBSON, MCCLURE,
HELMS, ROBERTS & DIAZ, LLP WALLACE & DANIELS, LLP
6060 North Central Expressway, Suite 560 8080 North Central Expressway, Suite 1300
Dallas, Texas 75206 Dallas, Texas 75206
john@northtexastriallawyers.com eyaeger@gmwd.com
manuel@northtexastriallawyers.com ATTORNEY FOR DEFENDANTS
ATTORNEY FOR DEFENDANTS ROBERT BLOMSTROM and
THE WILSON GROUP, LTD., and WILSON OFFICE INTERIORS, LLC
B. DONALD HILL, JR.
L. Randall Yazbeck, Esq. Jean A. Hobart, Esq.
5050 Quorum Drive, Suite 140 TUCKER, ELLIS & WEST, LLP
Dallas, Texas 75254 515 South Flower Street, 42nd Floor
ryaz@yazbecklawfirm.com Los Angeles, California 90071
ATTORNEYS FOR PLAINTIFF j.hobart@tuckerellis.com
ATTORNEY FOR DEFENDANTS
ROBERT BLOMSTROM and
WILSON OFFICE INTERIORS, LLC
Charles C. Frederiksen
Charles C. Frederiksen
PLAINTIFF’S RESPONSE TO DEFENDANTS’ EMERGENCY MOTION TO
CLARIFY RULING AND PLAINTIFF’S REQUEST FOR PROTECTIVE ORDER Page 4
NO. DC-10-01167
SIERRA INVESTMENT ASSOCIATES, § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. § OF DALLAS COUNTY, TEXAS
§
WILSON OFFICE INTERIORS, LLC; §
THE WILSON GROUP, LTD.; ROBERT §
BLOMSTROM; B. DONALD HILL, JR. §
§
Defendants. § 298th JUDICIAL DISTRICT
ORDER ON THE WILSON GROUP, LTD. AND B. DONALD HILL’S
EMERGENCY MOTION TO COMPEL INSPECTION
ON this 8th day of March, 2011, came on to be heard Defendants’ Emergency Motion to
Compel Inspection. The Court having heard arguments of counsel hereby orders as follows:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Defendants be allowed
to inspect Plaintiff’s warehouse facility in Carrollton, Texas, during the week of March 21, 2011,
and, further, that Defendants be allowed to bring representatives of Haag Engineering onto the
premises during the inspection.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the hearing date on
The Wilson Group, Ltd. and B. Donald Hill, Jr.’s Motion for Summary Judgment be continued
until April 22, 2011 at 9:00 a.m.
All other relief not expressly granted herein is hereby denied.
Dated: ____________________
HONORABLE JUDGE PRESIDING
ORDER ON THE WILSON GROUP, LTD. AND B. DONALD HILL’S
EMERGENCY MOTION TO COMPEL INSPECTION Page 1
Exhibit A
Exhibit B
Exhibit C
Preview
Filed 11 March 31 A11:44 Gary Fitzsimmons District Clerk Dallas District NO. DC-10-01167 SIERRA INVESTMENT ASSOCIATES, § IN THE DISTRICT COURT OF § Plaintiff, § § v. § OF DALLAS COUNTY, TEXAS § WILSON OFFICE INTERIORS, LLC; § THE WILSON GROUP, LTD.; ROBERT § BLOMSTROM; B. DONALD HILL, JR. § § Defendants. § 298th JUDICIAL DISTRICT PLAINTIFF’S RESPONSE TO DEFENDANTS’ EMERGENCY MOTION TO CLARIFY RULING AND PLAINTIFF’S REQUEST FOR PROTECTIVE ORDER TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW Sierra Investment Associates (“Sierra”) and files this Response to Defendants’ Emergency Motion to Clarify Ruling combined with Sierra’s Motion for Protective Order and as grounds for same would show the following: 1. On March 8, 2011, the Court heard Defendants’ Emergency Motion to Compel Inspection which requested the Court to enter an Order permitting Defendants’ expert witnesses to attend the inspection along with Defendants and their counsel. The Motion further sought reasonable and necessary attorneys’ fees incurred by Defendants in connection with filing the Motion. 2. At the conclusion of the hearing, the Court granted Defendants’ request that their experts be allowed to inspect Sierra’s warehouse facility which is the subject matter of this lawsuit. No evidence was presented nor did the Court make any ruling on Defendants’ request for reasonable attorneys’ fees. 3. Subsequent to the hearing, Sierra’s counsel forwarded a proposed Order to Defendants’ counsel for comment. A copy of that proposed Order is attached hereto as Exhibit PLAINTIFF’S RESPONSE TO DEFENDANTS’ EMERGENCY MOTION TO CLARIFY RULING AND PLAINTIFF’S REQUEST FOR PROTECTIVE ORDER Page 1 “A.” 4. Defendants’ counsel responded to Sierra’s proposed Order by stating the Court also granted Defendants the right to file their expert’s initial opinions after the inspection and that Sierra would thereafter be allowed to designate rebuttal experts. Sierra’s counsel disagreed with Defendants’ counsels’ recollection of the hearing because Sierra had previously filed on March 4, 2011, a Motion to Exclude Testimony. In fact, Sierra’s counsel requested it be allowed to present its Motion on March 8, 2011, at the same time as Defendants’ Motion to Compel. However, Defendants’ counsel refused that request. It is Sierra’s position that since its Motion to Exclude Testimony has not been set and heard by the Court, it could not have been overruled at this time. Additionally, it is Sierra’s position that the Court has not ruled on allowing Defendants’ experts to file experts’ reports because that relief was not mentioned, referenced, or argued in Defendants’ Emergency Motion to Compel Inspection which was heard on March 8, 2011. PROTECTIVE RELIEF 5. On several occasions when counsel discussed scheduling of discovery, Sierra has apprised Defendants’ counsel that a Premises Liability Release would need to be executed by parties at the time of the inspection. At no time did Defendants’ counsel indicate the inspecting parties would not execute a Release. However, on the morning of March 22, 2011, Defendants’ counsel advised they would not execute a Release unless Sierra also released Defendants and their representatives for any conduct during the inspection. Sierra seeks a protective order by the Court pursuant to Rule 192.6 of the Texas Rules of Civil Procedure requiring attendees of the inspection to execute a simple Release and Indemnity Agreement as attached hereto Exhibit “B”, or, in the alternative, require Defendants to file a bond or provide insurance coverage. PLAINTIFF’S RESPONSE TO DEFENDANTS’ EMERGENCY MOTION TO CLARIFY RULING AND PLAINTIFF’S REQUEST FOR PROTECTIVE ORDER Page 2 Defendants had been advised that the property has been vacant for approximately three years and there is no certificate of occupancy covering the premises. (See Affidavit of Wesley Jeanes, attached hereto as Exhibit “C”). Furthermore, Defendants have been advised that Sierra is cognizant of the allegations in their counterclaims regarding the existence of hazardous defects on the property. Sierra has been advised that Defendants’ experts will conduct “testing” during the inspection but Defendants do not advise as to the nature or methodology of that testing. Sierra would show the execution of the Release covering the inspection process is necessary because of the litigious nature of Defendants as evidenced by their counterclaims and alleged affirmative defenses on file herein. WHEREFORE, PREMISES CONSIDERED, Sierra prays upon hearing, the Court grant its request and order the Defendants’ attendees execute the Release in the form attached hereto as Exhibit “B.” Sierra requests all such and further relief both at law and in equity to which it may show itself justly entitled. Respectfully submitted, GLAST, PHILLIPS & MURRAY By: Charles C. Frederiksen Charles C. Frederiksen State Bar No. 07413300 14801 Quorum Drive, Suite 500 Dallas, Texas 75254 (972) 419-8300 (Telephone) (972) 419-8329 (Fax) cfrederiksen@gpm-law.com ATTORNEYS FOR PLAINTIFF PLAINTIFF’S RESPONSE TO DEFENDANTS’ EMERGENCY MOTION TO CLARIFY RULING AND PLAINTIFF’S REQUEST FOR PROTECTIVE ORDER Page 3 CERTIFICATE OF CONFERENCE This is to certify that counsel for Plaintiff and counsel for all Defendants have conferred regarding the substance and merits of this Motion and counsel for all Defendants oppose this Motion. Charles C. Frederiksen Charles C. Frederiksen CERTIFICATE OF SERVICE I certify that on March 31, 2011, a true and correct copy of this document was served on the following in accordance with the TEXAS RULES OF CIVIL PROCEDURE. John Helms, Esq. Evelyn A. Yaeger, Esq. Manuel Diaz, Esq. GIBSON, MCCLURE, HELMS, ROBERTS & DIAZ, LLP WALLACE & DANIELS, LLP 6060 North Central Expressway, Suite 560 8080 North Central Expressway, Suite 1300 Dallas, Texas 75206 Dallas, Texas 75206 john@northtexastriallawyers.com eyaeger@gmwd.com manuel@northtexastriallawyers.com ATTORNEY FOR DEFENDANTS ATTORNEY FOR DEFENDANTS ROBERT BLOMSTROM and THE WILSON GROUP, LTD., and WILSON OFFICE INTERIORS, LLC B. DONALD HILL, JR. L. Randall Yazbeck, Esq. Jean A. Hobart, Esq. 5050 Quorum Drive, Suite 140 TUCKER, ELLIS & WEST, LLP Dallas, Texas 75254 515 South Flower Street, 42nd Floor ryaz@yazbecklawfirm.com Los Angeles, California 90071 ATTORNEYS FOR PLAINTIFF j.hobart@tuckerellis.com ATTORNEY FOR DEFENDANTS ROBERT BLOMSTROM and WILSON OFFICE INTERIORS, LLC Charles C. Frederiksen Charles C. Frederiksen PLAINTIFF’S RESPONSE TO DEFENDANTS’ EMERGENCY MOTION TO CLARIFY RULING AND PLAINTIFF’S REQUEST FOR PROTECTIVE ORDER Page 4 NO. DC-10-01167 SIERRA INVESTMENT ASSOCIATES, § IN THE DISTRICT COURT OF § Plaintiff, § § v. § OF DALLAS COUNTY, TEXAS § WILSON OFFICE INTERIORS, LLC; § THE WILSON GROUP, LTD.; ROBERT § BLOMSTROM; B. DONALD HILL, JR. § § Defendants. § 298th JUDICIAL DISTRICT ORDER ON THE WILSON GROUP, LTD. AND B. DONALD HILL’S EMERGENCY MOTION TO COMPEL INSPECTION ON this 8th day of March, 2011, came on to be heard Defendants’ Emergency Motion to Compel Inspection. The Court having heard arguments of counsel hereby orders as follows: IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Defendants be allowed to inspect Plaintiff’s warehouse facility in Carrollton, Texas, during the week of March 21, 2011, and, further, that Defendants be allowed to bring representatives of Haag Engineering onto the premises during the inspection. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the hearing date on The Wilson Group, Ltd. and B. Donald Hill, Jr.’s Motion for Summary Judgment be continued until April 22, 2011 at 9:00 a.m. All other relief not expressly granted herein is hereby denied. Dated: ____________________ HONORABLE JUDGE PRESIDING ORDER ON THE WILSON GROUP, LTD. AND B. DONALD HILL’S EMERGENCY MOTION TO COMPEL INSPECTION Page 1 Exhibit A Exhibit B Exhibit C