A-1 FREEMAN RELOCATION INC vs. Z BILLIARDS

o
CAUSE N0. 2004-45466
A-1
FREEMAN RELOCATION, INC.,
and CINDY PEREZ,
§§
A W39
IN THE
In - a an
A8
COURT
L l 333 lllflz
§
Plaintiffs,
§
§
v.
§
§
2 BILLIARDS,
§
§
Defendant.
§
PLAINTI
’ SE 0
234"‘ JUDICIAL DISTRICT
M TI N FOR SAN TI N
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiffs A-1 Freeman Relocation, Inc. and Cindy Perez (hereinafier may be referred to
collectively as “Plaintiffs”), file their Second Motion for Sanctions, and in support thereof would
respectfully show the Court as follows:
I
I.
Background
1.
. A-1 Freeman Relocation, Inc. (hereinafterreferred to as “A-1"), a moving and storage
company, provided moving, transportation and/or storage services for Defendant Z Billiards. Z
Billiards was invoiced for these services; however, Z Billiards continually failed to make full
paymentpursuant to the invoices. Despite repeated representations to Plaintiffs that the outstanding
balance would be paid, 2 Billiards has not performed as promised, and the outstanding debt now
totals $193,154.00. Accordingly, Plaintiffs brought suit on account and quantum meruit.
necoaoews MEMORANDUM
This instrument is of poor quafltv _
and not satisfactory for ph0I09F3Ph'°
rgaordauon; snclror atterations were
present at the mm at imaging
f
Find authenticated court documents without watermarks at docketalarm.com.
2.
Subsequently, Plaintiffs requested dates for the deposition ofDefendant’s corporate
representative. Plaintiffs made repeated attempts via telephone and written correspondence to
determine dates of availability from Z Billiards for the deposition. Defendant however, did not
respond to any ofthe requests for deposition dates. Therefore, Plaintiffs had no choice but to serve
a notice of deposition, selecting a date of their own choosing.
3.
After receiving the deposition notice, Defendant filed its Motion to Quash.
Thereafter, Plaintiffs made further attempt to work with Defendant to find a date convenient to all
parties. Despite these efforts, Defendant failed to provide a date for the deposition ofits corporate
representative. On October 25, 2004, this Court held a _hearing and entered an order compelling Z
Billiards to present its corporate representative for deposition on November 8, 2004.
4.
Despite the Court’s Order, Z Billiards failed to appear for the deposition. A copy of
the Court’s Order is attached hereto as Exhibit “A,” and incorporated herein by reference.
5.
Plaintiffs therefore filed their first Motion for Sanctions against Z Billiards,
requesting that the court sanction Z. Billiards for failing to appear for its deposition. At the hearing,
the Court sanctioned Z Billiards $2,500.00 for failing to appear for the deposition and, once again,
ordered Z Billiards to appear for a deposition on December 15, 2004 at the office ofcounsel for the
Plaintiffs. A true and correct copy of the order is attached hereto as Exhibit “B” and incorporated
herein for all intents andpurposes. At the hearing, the court also admonished counsel for Z Billiards
that it should not ignore the court’s latest order.
6.
Once again ignoring a court order, on December 15, 2004, Z Billiards failed to appear
for the deposition. No surprising, Z Billiards also failed to pay the monetary sanction ordered by the
court. As a result ofthe foregoing, the Court should now sanction Z Billiards for its discovery abuse
f
Find authenticated court documents without watermarks at docketalarm.com.
and failure to comply with this Court Orders by striking the pleadings ofZ Billiards and entering a
judgment in favor of Plaintiffs.
II.
Argument and Authoritig
7.
The purpose ofdiscovery is to seek the truth, so that disputes may be decided by what
the facts reveal, not by what facts are concealed. Axelson Inc. v. Mcllhany, 798 S.W.2d 550, 555
(Tex. 1990). The purpose of sanctions is to secure compliance with the rules, to deter future
violation of the rules, and to punish parties that violate the rules. Chrysler Corp. v. Blackmon, 841
S.W.2d 844, 849 (Tex. 1992).
8.
Plaintiffs ask the court to impose sanctions by striking the pleadings of Z Billiards
and entering ajudgment in favor ofPlaintiffs. These sanctions are justified because there is a direct
relationship between Z Billiards’ conduct and this request for sanctions. Z Billiards has failed to
respond to legitimate discovery requests made by Plaintiffs. As a result, Plaintiffs were forced to
file a motion to compel the deposition ofZ Billiards representative, as well as a motion for sanctions.
Ultimately, this Court ordered Z Billiards to present its Corporate Representative for depositions on
November 8, 2004 and December 15, 2004. Z Billiards failed to comply with both of these Court
Orders.
I 9.
Z Billiards’ failure to comply with the Court Orders is representative ofits’ cavalier
attitude regarding the debt which is the basis ofthis lawsuit. Z Billiards has made misrepresentations
and stalled all attempts to collect the past due debt to Plaintiffs for well over a year. Z Billiards has
also mislead this court regarding its business transactions in this state, by filing a meritless Special
Appearance. On the eve ofthe hearing on the Special Appearance, Z Billiards waived their Special
3
f
Find authenticated court documents without watermarks at docketalarm.com.
.-
#7
Appearance. Death penalty sanctions are appropriate in this case because the Court has already
attempted to gain compliance with the discoveryprocess by ordering Z Billiards to present a witness
for deposition. Z Billiards failed and refused to act as directed by this Court. Z Billiards conduct
justifies the presumption that its defenses lack merit.
III.
Conclusion
10.
Z Billiards’ utter failure to comply with the discovery process and refusal to act
pursuant to the Court Orders merits sanctions by this Court. Accordingly, the Court should strike
Z Billiards pleadings and enter judgment in favor of Plaintiffs in the principal amount of
$193,154.00, along with reasonable and necessary attorneys’ fees incurred to date by Plaintiffs in
the amount of$30,000.00, as well as such other and further relief, both at law and in equity, to which
Plaintiffs may be entitled.
III.
Prayer
WHEREFORE, PREMISES CONSIDERED, A-1 Freeman Relocation, Inc. prays that this
Court grant Plaintiffs’ Motion for Sanctions, strike the pleadings ofZ Billiards, and enterjudgment
in favor of Plaintiffs in the principal amount of $193,l 54.00, along with reasonable and necessary
attorneys’ fees incurred to date by Plaintiffs in the amount of, as well as such other and further relief,
both at law and in equity, to which Plaintiffs may be entitled.
f
Find authenticated court documents without watermarks at docketalarm.com.
5
F"?
Respectfiflly submitted,
JOHNSON DELUCA KENNEDY & KURISKY
A Professi n
oration
BY:
radley L.
SBT #05653800
Cindy Bennett Smith
SBT #2403308I
4 Houston Center
1221 Lamar, Suite 1000
Houston, Texas 77010
(713) 652-2525 — Telephone
(713) 652-5130 - Telecopy
ATTORNEYS FOR PLAINTIFFS
A-1 FREEMAN RELOCATION, INC. and
CINDY PEREZ
f
Find authenticated court documents without watermarks at docketalarm.com.
QERTIFICATE OF SERVICE
I hereby certify that on December 17, 2004 a true and correct copy of the foregoing
instrument was forwarded by facsimile and/or certified mail/return receipt requested to all counsel
of record:
Mr. W. David Torok
Balcom Law Firm, P.C.
8584 Katy Freeway, Suite 305
Houston, Texas 77024
Br
ey L. De
ca
CAUSE NO. 2004-45466
A-1
and FREEMANRELOCATION,INC.
CINDY PEREZ,
§
§
Plaintiffs
IN igzrnrmr
I @Ifi
arm. amt“
‘E I
I §§
§
vs.
SEP 2 3 2004 3;,P.%5°t'JN’I‘F,v$Eé‘AS
Harp
g
ZBILLIARDS,
Deputy
§
Defendant
§
I
234th JUDICIAL DISTRICT
onmm
BE IT REMEMBERED that on this day came on to be heard in the above entitled and
numbered cause ofaction, Defendant Z BILLIARDS’ Motion to Quash Oral Deposition. Having
considered
Defendant’s
Motion,0l1Dt-‘I259
the Courtand
is ofthe
opinion that said Motion d
IE;-a"<d._
+0
ereiore,1t1sPwA~tt‘awH
ORDERED :3ADIUDGED
EC chime’ Ifilmt/F; cwrflovglc
«Err
;.,m_;;
zVW0M)z4r 8, 2009 ax /-'::a}a.,,. . m
.4» mom.
on zsizaaeo
our 25 znns
EXIBIT
3
CAUSEN0.2004-4546-ti-H. A-1 FREEMAN RELOCATION. mc..
andCINDYPEREZ.
Pl ' rim.
21111
§
5
g5
ZBILLIARDS.
g
5
an @
fitmeersrmergpunr
2
v
Defendant.
'_-,
.
.
.
M. Fed
_'.;-
HARRISCOUNTYTEXAS Nog'VL1'£0.“&‘“c45g"D
2004
3’ am. ,_.,m'_ M
234* JUDICIALDBTM
‘re_ CMIPEH
1 u - eemmw
- —.n. u u znr
IL 't!'L‘_ _-.1'l_'L...:-44.2.:-._’
On this daycame on to be eonsideredPIar'ntrjfli- 'Morionfor Sanctions. and the Court, having
considered said Motion, the Response and the Reply thereto. ifany, the pleadings on file among the
papers ofthis cause, and the argtnnents of counsel. hereby makes the following findings of fact:
(I)
That 2 Billiards ("Defi:ndam") has previously failed to comply with theTcxas Rules
of Civil Procedure by flailing to present a corporate representative for deposition;
(2)
That Defendant was previously ordered by this Court to present aeorporate
representative fordeposition:
(3)
That despite this Court’: order and its prior failure, Defendant again inelteusably
failed to present at corporate representative for deposition:
CND9eo2urct0mi1fb6nd:
info@
docketalarm.com
Access the Rest of This Document
Join Docket Alarm to
Access this Document
and Millions More!
Comprehensive Search: Millions of
PACER cases and documents, the
US Supreme Court, California
Courts, the ITC, the TTAB, and the
PTAB. Thousands of cases are
added every data.
Real-Time Alerts: Never check the
court docket again. Track existing
cases, or be alerted to new cases as
they are filed.
Legal Analytics: Analyze your
chances of winning. See a firm’s clients, and how they do for those clients, and much more.
Benefits
Combine Services: Docket Alarm
does the work of multiple services in one package.
Uber-Fast Updates: Ping the
court up to 16 times a day to get
filings in near real-time.
Advanced Search: We support
both terms and connectors and
natural language searching.
Lots of Filters: Easily narrow your
search with filters.
Bulk Downloads: Download hundreds of filings in seconds.
Reports: Easily export reports
from your research.
API: Integrate our data into your
app with our PACER API.
User Friendly: Our service is
beautiful and, yes, fun to use.
Some of Our Clients