Preview
FILED
2/24/2023 9:08 AM
FELICIA PITRE
DISTRICT CLERK
DALLAS CO., TEXAS
Marissa Gomez DEPUTY
NO. DC-22-06172
GREENWAY—GOOD LATIMER, L.P., IN THE DISTRICT COURT
§§§§§§§§§§§§§§
Plaintiff,
DALLAS COUNTY, TEXAS
JONATHAN SERRANO; SHAWN
RAO aka SHARAD RAO; and MARG
WISFUL, LLC d/b/a MARG WISHFUL,
LLC;
Defendants. 95th JUDICIAL DISTRICT
PLAINTIFF’S OBJECTIONS AND MOTION T0 STRIKE
DEFENDANTS’ EVIDENCE IN OPPOSITION TO
MOTION FOR PARTIAL SUMMARY JUDGMENT
Greenway-Good Latimer, L.P. (“Greenway”) files its Objections and Motion to
Strike Defendants’ Evidence in Opposition to Motion for Partial Summary Judgment, and
states:
I. SUMMARY
Greenway filed its traditional motion for summary judgment on January 27, 2022
(the “Motion”), which requests this Court grant it summary judgment on Plaintiff s breach
of contract claim and Defendants’ affirmative defenses as it pertains solely to liability. The
Motion presents the Court with questions of law based on undisputed facts — regardless of
how Defendants might now try to characterize or manufacture irrelevant facts. In a futile
effort to create a fact issue, Defendants submitted purported summary judgment evidence
that is, among other things, hearsay, irrelevant, conclusory, and speculative in an effort to
PLAINTIFF’S OBJECTIONS AND MOTION TO STRIKE DEFENDANTS’ EVIDENCE
IN OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 1
defeat the Motion. The objections set forth below should be sustained and the purported
evidence stricken from Defendants’ response to the Motion and not considered by the
Court.
II. ARGUMENTS AND AUTHORITIES
Texas Rule of Civil Procedure 166a(f) requires that testimony, whether by affidavit
or deposition, submitted in opposition to summary judgment motions contain evidence that
would be admissible at trial. Hearsay is not admissible unless allowed by statute, the rules
of evidence, or other rules prescribed under statutory authority. TEX. R. EVID. 802.
Depositions taken in different proceedings may be used if there is an exception to the Rules
of Evidence. TEX. R. CIV. P. 203.6(0). As addressed below, no such exceptions exist for
any of the testimony submitted by Defendants. Furthermore, “[c]onclusory statements
unsupported by facts in affidavits do not constitute competent summary judgment
evidence.” Trapnell v. John Hogan Interests, Inc., 809 S.W.2d 606, 610 (Tex. App.—
Corpus Christi 1991, writ denied). Unsubstantiated factual conclusions, opinions, and
subjective beliefs unsupported by factual evidence likewise are not evidence or probative
of any facts. See Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996).
Here, Greenway objects to all or parts of the following exhibits included with
Defendants’ response to the Motion: (1) Exhibit 1 — the Affidavit of Shawn Rao (the “Rao
Affidavit”); (2) Exhibit 2 — the Affidavit of Jonathan Serrano (the “Serrano Affidavit”);
PLAINTIFF’S OBJECTIONS AND MOTION T0 STRIKE DEFENDANTS’ EVIDENCE
IN OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 2
and (3) Exhibit 3 — the Deposition Excerpts of Ashish Nayyar taken in a different
proceeding (the “Depositi0n”).1
A. The Deposition
Defendants’ response and effort to defeat the Motion hinges entirely on the
deposition excerpts of Ashish Nayyar a non-party Witness Whose deposition was taken in
—
an entirely different proceeding. [See Defendants’ Exhibit 3.] The Dallas Court of Appeals
recently foreclosed efforts by a party to use hearsay excerpts from the deposition of a non-
party in a different proceeding. See Taylor v. Baylor Scott & White Med. Center-Frisco,
2022 WL 405986, Cause No. 05-20-00352-CV (Tex. App—Dallas Feb. 10, 2022, no pet.).
In Taylor, the plaintiff, in responding to the hospital’s motion for summary judgment in a
medical negligence case, attempted to submit the deposition of the defendant doctor’s
partner in an unrelated case. Id. at *2.
The trial court sustained the hospital’s hearsay objection to the deposition and
granted the hospital’s motion. Ia’. On appeal, the court of appeals was quick to dispatch
with the plaintiff’s theory of the admissibility of the deposition:
Hearsay is testimony a Witness “does not make While testifying at the current
trial or hearing,” which is offered “to prove the truth of the matter asserted.”
TEX. R. EVID. 801(d). Hearsay is not admissible unless allowed by statute,
the rules of evidence, or other rules prescribed under statutory authority. TEX.
R. EVID. 802. According to Rule 801(c)(3), deposition testimony is not
hearsay if the deposition was taken in the same proceeding. The rule directs
us to look at Rule 203.6 of the Texas Rules of Civil Procedure for a definition
of “same proceeding.” Id. “Same proceeding” is defined to include “a
proceeding in a different court but involving the same subject matter and the
same parties or their representatives or successors in interest.” TEX. R. CIV.
1
Because the Rao Affidavit and Serrano Affidavit are essentially identical, they will be referred to together
as the “Affidavits.”
PLAINTIFF’S OBJECTIONS AND MOTION T0 STRIKE DEFENDANTS’ EVIDENCE
IN OPPOSITION T0 MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 3
P. 203 .6(b). Depositions taken in different proceedings may be used, but only
as permitted by the Texas Rules of Evidence. TEX. R. CIV. P. 203.36(c).
Id. Where the deposition proffered by plaintiff in the Taylor case was not taken in the same
proceeding; was taken in a proceeding in a different court, involving different parties, in
an unrelated matter; it “does not meet the conditions to establish that the deponent’s
statement is not hearsay.” Id. (citing TEX. R. EVID. 801(c)(3)).
Here, the deposition of Nayyar is entirely like the deposition of the one proffered
by the plaintiff in Taylor. Nayyar’s deposition was taken in an unrelated proceeding to
which Plaintiff was not a party and did not have the opportunity to cross-examine the
witness. It is, by definition, a “different proceeding,” and does not meet any of the
exceptions provided to What is otherwise inadmissible hearsay evidence? Thus, the
excerpts of Nayyar submitted as Exhibit 3 in Defendants’ appendix should be stricken in
its entirety and not considered in Defendants’ response to the Motion.
Furthermore, the Deposition is irrelevant as the excerpted testimony does not state
when the alleged conversations took place — and Defendants know full well they took place
prior to the entry of the Settlement Agreement and Release. Thus, claims arising out of the
alleged conversations were released, thus his testimony is irrelevant.
Finally, as a discovery sanction, Defendants should be precluded from using any
portion of the Deposition, because Defendants have refused to produce the Deposition
transcript to Greenway. That is an absolute abuse of the judicial process. Further, if
2
Defendants will likely claim the cases are “related.” They are not. In this suit, Greenway sues for breach
of a lease agreement. The other case involves an internal dispute amongst Marg Wishful’s members and
claims of fraud regarding Marg Wishfill’s solicitations of investments from Mr. Nayyar.
PLAINTIFF’S OBJECTIONS AND MOTION T0 STRIKE DEFENDANTS’ EVIDENCE
IN OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 4
provided a copy, Greenway would have been entitled, pursuant to the rule of optional
completeness, t0 submit additional testimony from the Deposition that would have
established facts that completely contradict Defendants’ spin on his testimony, or
Greenway would have been entitled to submit evidence with its Motion to establish that
any alleged conversation occurred prior to the Settlement Agreement and Release.
B. The Affidavits
The Affidavits were made by two of Marg Wishful’s members. There are several
objectionable statements in the Affidavits, which are, coincidentally, virtually identical. fl
is remarkable that two individuals have the exact same recollection of events dating back
to early 2017. Because the affidavits are essentially identical, Greenway will lodge its
remaining objections to each paragraph of both together. For purposes of Greenway’s
objections, Greenway will focus its objections on the following items: (1) relevance (Tex.
R. Evid. 401, 402), (2) the affiants’ lack of personal knowledge (Tex. R. Evid. 602); (3)
hearsay and reliance on hearsay of Nayyar’s alleged testimony (Tex. R. Evid. 602 , 801,
802), (4) the conclusory statements (Tex. R. Evid. 602, 701); (5) improper legal
conclusions, and (6) speculation without any foundation (Tex. R. Evid. 602, 701).
Paragraphs 4 7-51
Most notably, both Affidavits repeat the same hearsay included in Nayyar’s
deposition, which, as addressed above, is inadmissible hearsay. In both Affidavits (both in
paragraph 47), they simply repeat what Nayyar supposedly testified about in his deposition
without establishing any personal knowledge. [See Ex. 1 1] 47 and Ex. 2 1] 47.] Remarkably,
in paragraph 47 of both affidavits, they both “testify” identically as follows:
PLAINTIFF’S OBJECTIONS AND MOTION T0 STRIKE DEFENDANTS’ EVIDENCE
IN OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 5
Albeit, unknown to Marg Wishful, myself, and [the other Defendant], both
prior to and during the execution of the Settlement Agreement and Release
and Second Amendment, Greenway, by and through its agent, Mark
Hardaway, wrongfully interfered With Defendants’ relationship With a
member of Defendant Marg Wishful by attempting to solicit one of its
members, Ashish Nayyar, to do business directly with [Greenway], and to
the exclusion of the Defendants. More specifically, Greenway, approached
Ashish Nayyar, and stated that if Shawn Rao and Jonathan Serrano were out
of the project, the landlord was ready to lease Ashish Nayyar the property.
Greenway requested Ashish Nayyar to kick out Shawn Rao and Jonathan
Serrano from the Project. This interference made it almost impossible to
move forward and complete the project or open. Greenway continued to
claim to Ashish Nayyar that it didn’t think Shawn Rao or Jonathan Serrano
were capable of opening the project.
[Defendants’ Appendix Ex. 1 11 47 (App. 10) Ex. 2 11 47 (App. 108).] The affiants
provide no evidence of any personal knowledge of these allegations. Rather, it is clearly
based on Nayyar’s hearsay deposition testimony. Indeed, they both say the acts were
“unknown” to themselves. [Id.] Furthermore, these paragraphs are replete with conclusory
statements based on hearsay.3 For the same reason, Greenway objects to each affiant’s
paragraph 48, which remains based on hearsay evidence of which they have no personal
knowledge. Additionally, all of these paragraphs contain improper legal conclusions (e. g.
Para. 47 - “wrongfully interfered,” Para. 48 - “Plaintiff’s tortious interference and
wrongful, fraudulent acts,” Para. 49 — “Based on the foregoing, ’3 6‘
violates the express
provision and liquidated damages provision contained in the Settlement Agreement and
Release and Second Amendment,” Para. 50 —
“Greenway substantially and materially
breached” and “its fraudulent conduct and interference,” and Para. 51 — “Plaintiff’s
3
A conclusory statement is one that does not provide the underlying facts to support the conclusion and
cannot be readily controverted.” Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991).
PLAINTIFF’S OBJECTIONS AND MOTION T0 STRIKE DEFENDANTS’ EVIDENCE
IN OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 6
substantial and material breach”). Finally, both Affidavits contain speculation in Paragraph
49 “it is apparent Greenway never intended to comply with the Second Amendment and
Settlement Agreement and Release and entered into same with the full intent of defrauding
Defendants out of the opportunity While receiving the benefits of a sublease that
Defendants put in p1ace.”4
Paragraphs 2-43: Irrelevant
Both afflants drone on and one for 41 identical paragraphs about the parties’ original
dispute, which everyone agrees was settled on July 1, 2021. [Ex. 1 1N 2-44 (App. 1-8) and
Ex. 2 1H 2-44 (App. 99-106).] Indeed, in paragraph 45 of both affidavits, the affiants swear
that the Settlement Agreement entered into between the parties includes an “unambiguous
‘Release and Covenant Not to Sue’ on behalf of both parties” for all “claims, known and
unknown, though the Effective Date of this Agreement, including . . ..” [Id. 11
45 of both
affidavits] Thus, by admitting that the parties agreed to release one another through the
Effective Date, which was July 1, 2021, everything that chronologically preceded the
releases —
including all the alleged facts in paragraphs 2-43 of the affidavits — are entirely
irrelevant.
4
Finally, the affiants never identify a single provision of the Settlement Agreement and Release or the
Second Amendment that they contend Greenway actually breached. For the foregoing reasons, their
statements in paragraph 51 are irrelevant and should be stricken in their entirety.
PLAINTIFF’S OBJECTIONS AND MOTION T0 STRIKE DEFENDANTS’ EVIDENCE
IN OPPOSITION T0 MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 7
III. CONCLUSION
For the reasons explained above, Greenway respectfully requests that this Court
sustain its objections set forth above, strike the referenced purported evidence from
the record, and not consider the purported evidence When ruling on the Motion.
Respectfully submitted,
By: /s/ Andrew P. Speicher
Andrew P. Speicher
State Bar No. 24027878
drew.speicher@figdav.com
Amber D. Reece
State Bar No. 24079892
amber.reece@f1gdav.com
FIGARI + DAVENPORT, LLP
901 Main Street, Suite 3400
Dallas, Texas 75202-3796
(214) 939-2000
(214) 939-2090 (facsimile)
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
On February 24, 2023, the foregoing instrument was filed and served Via
efile.txcourts. gov on Defendants’ counsel.
/s/ Andrew P. Speicher
Andrew P. Speicher
PLAINTIFF’S OBJECTIONS AND MOTION TO STRIKE DEFENDANTS’ EVIDENCE
IN OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 8
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Andrew Speicher on behalf of Andrew Speicher
Bar No. 24027878
drew.speicher@figdav.com
Envelope ID: 73074140
Status as of 2/24/2023 9:15 AM CST
Associated Case Party: GREENWAY GOOD LATIMER, L.P.
Name BarNumber Email TimestampSubmitted Status
Andrew Speicher drew.speicher@figdav.com 2/24/2023 9:08:35 AM SENT
Amber D.Reece amber.reece@figdav.com 2/24/2023 9:08:35 AM SENT
Case Contacts
Name BarNumber Email TimestampSubmitted Status
Amy Gatlin amy.gatlin@figdav.com 2/24/2023 9:08:35 AM SENT
Danna Walls danna.walls@figdav.com 2/24/2023 9:08:35 AM SENT
Associated Case Party: JONATHAN SERRANO
Name BarNumber Email TimestampSubmitted Status
Baleigh W.Cherry bcherry@albinoldnerlaw.com 2/24/2023 9:08:35 AM SENT
John J.Mongogna jmongogna@albinoldnerlaw.com 2/24/2023 9:08:35 AM SENT
Molly Lahmers molly@albinoldnerlaw.com 2/24/2023 9:08:35 AM SENT
W. ToddAlbin talbin@albinoldnerlaw.com 2/24/2023 9:08:35 AM SENT
Associated Case Party: SHAWN RAO
Name BarNumber Email TimestampSubmitted Status
W. ToddAlbin talbin@albinoldnerlaw.com 2/24/2023 9:08:35 AM SENT
Associated Case Party: MARG WISHFUL LLC
Name BarNumber Email TimestampSubmitted Status
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Andrew Speicher on behalf of Andrew Speicher
Bar No. 24027878
drew.speicher@figdav.com
Envelope ID: 73074140
Status as of 2/24/2023 9:15 AM CST
Associated Case Party: MARG WISHFUL LLC
W. ToddAlbin talbin@albinoldnerlaw.com 2/24/2023 9:08:35 AM SENT
Preview
FILED 2/24/2023 9:08 AM FELICIA PITRE DISTRICT CLERK DALLAS CO., TEXAS Marissa Gomez DEPUTY NO. DC-22-06172 GREENWAY—GOOD LATIMER, L.P., IN THE DISTRICT COURT §§§§§§§§§§§§§§ Plaintiff, DALLAS COUNTY, TEXAS JONATHAN SERRANO; SHAWN RAO aka SHARAD RAO; and MARG WISFUL, LLC d/b/a MARG WISHFUL, LLC; Defendants. 95th JUDICIAL DISTRICT PLAINTIFF’S OBJECTIONS AND MOTION T0 STRIKE DEFENDANTS’ EVIDENCE IN OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT Greenway-Good Latimer, L.P. (“Greenway”) files its Objections and Motion to Strike Defendants’ Evidence in Opposition to Motion for Partial Summary Judgment, and states: I. SUMMARY Greenway filed its traditional motion for summary judgment on January 27, 2022 (the “Motion”), which requests this Court grant it summary judgment on Plaintiff s breach of contract claim and Defendants’ affirmative defenses as it pertains solely to liability. The Motion presents the Court with questions of law based on undisputed facts — regardless of how Defendants might now try to characterize or manufacture irrelevant facts. In a futile effort to create a fact issue, Defendants submitted purported summary judgment evidence that is, among other things, hearsay, irrelevant, conclusory, and speculative in an effort to PLAINTIFF’S OBJECTIONS AND MOTION TO STRIKE DEFENDANTS’ EVIDENCE IN OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 1 defeat the Motion. The objections set forth below should be sustained and the purported evidence stricken from Defendants’ response to the Motion and not considered by the Court. II. ARGUMENTS AND AUTHORITIES Texas Rule of Civil Procedure 166a(f) requires that testimony, whether by affidavit or deposition, submitted in opposition to summary judgment motions contain evidence that would be admissible at trial. Hearsay is not admissible unless allowed by statute, the rules of evidence, or other rules prescribed under statutory authority. TEX. R. EVID. 802. Depositions taken in different proceedings may be used if there is an exception to the Rules of Evidence. TEX. R. CIV. P. 203.6(0). As addressed below, no such exceptions exist for any of the testimony submitted by Defendants. Furthermore, “[c]onclusory statements unsupported by facts in affidavits do not constitute competent summary judgment evidence.” Trapnell v. John Hogan Interests, Inc., 809 S.W.2d 606, 610 (Tex. App.— Corpus Christi 1991, writ denied). Unsubstantiated factual conclusions, opinions, and subjective beliefs unsupported by factual evidence likewise are not evidence or probative of any facts. See Ryland Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). Here, Greenway objects to all or parts of the following exhibits included with Defendants’ response to the Motion: (1) Exhibit 1 — the Affidavit of Shawn Rao (the “Rao Affidavit”); (2) Exhibit 2 — the Affidavit of Jonathan Serrano (the “Serrano Affidavit”); PLAINTIFF’S OBJECTIONS AND MOTION T0 STRIKE DEFENDANTS’ EVIDENCE IN OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 2 and (3) Exhibit 3 — the Deposition Excerpts of Ashish Nayyar taken in a different proceeding (the “Depositi0n”).1 A. The Deposition Defendants’ response and effort to defeat the Motion hinges entirely on the deposition excerpts of Ashish Nayyar a non-party Witness Whose deposition was taken in — an entirely different proceeding. [See Defendants’ Exhibit 3.] The Dallas Court of Appeals recently foreclosed efforts by a party to use hearsay excerpts from the deposition of a non- party in a different proceeding. See Taylor v. Baylor Scott & White Med. Center-Frisco, 2022 WL 405986, Cause No. 05-20-00352-CV (Tex. App—Dallas Feb. 10, 2022, no pet.). In Taylor, the plaintiff, in responding to the hospital’s motion for summary judgment in a medical negligence case, attempted to submit the deposition of the defendant doctor’s partner in an unrelated case. Id. at *2. The trial court sustained the hospital’s hearsay objection to the deposition and granted the hospital’s motion. Ia’. On appeal, the court of appeals was quick to dispatch with the plaintiff’s theory of the admissibility of the deposition: Hearsay is testimony a Witness “does not make While testifying at the current trial or hearing,” which is offered “to prove the truth of the matter asserted.” TEX. R. EVID. 801(d). Hearsay is not admissible unless allowed by statute, the rules of evidence, or other rules prescribed under statutory authority. TEX. R. EVID. 802. According to Rule 801(c)(3), deposition testimony is not hearsay if the deposition was taken in the same proceeding. The rule directs us to look at Rule 203.6 of the Texas Rules of Civil Procedure for a definition of “same proceeding.” Id. “Same proceeding” is defined to include “a proceeding in a different court but involving the same subject matter and the same parties or their representatives or successors in interest.” TEX. R. CIV. 1 Because the Rao Affidavit and Serrano Affidavit are essentially identical, they will be referred to together as the “Affidavits.” PLAINTIFF’S OBJECTIONS AND MOTION T0 STRIKE DEFENDANTS’ EVIDENCE IN OPPOSITION T0 MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 3 P. 203 .6(b). Depositions taken in different proceedings may be used, but only as permitted by the Texas Rules of Evidence. TEX. R. CIV. P. 203.36(c). Id. Where the deposition proffered by plaintiff in the Taylor case was not taken in the same proceeding; was taken in a proceeding in a different court, involving different parties, in an unrelated matter; it “does not meet the conditions to establish that the deponent’s statement is not hearsay.” Id. (citing TEX. R. EVID. 801(c)(3)). Here, the deposition of Nayyar is entirely like the deposition of the one proffered by the plaintiff in Taylor. Nayyar’s deposition was taken in an unrelated proceeding to which Plaintiff was not a party and did not have the opportunity to cross-examine the witness. It is, by definition, a “different proceeding,” and does not meet any of the exceptions provided to What is otherwise inadmissible hearsay evidence? Thus, the excerpts of Nayyar submitted as Exhibit 3 in Defendants’ appendix should be stricken in its entirety and not considered in Defendants’ response to the Motion. Furthermore, the Deposition is irrelevant as the excerpted testimony does not state when the alleged conversations took place — and Defendants know full well they took place prior to the entry of the Settlement Agreement and Release. Thus, claims arising out of the alleged conversations were released, thus his testimony is irrelevant. Finally, as a discovery sanction, Defendants should be precluded from using any portion of the Deposition, because Defendants have refused to produce the Deposition transcript to Greenway. That is an absolute abuse of the judicial process. Further, if 2 Defendants will likely claim the cases are “related.” They are not. In this suit, Greenway sues for breach of a lease agreement. The other case involves an internal dispute amongst Marg Wishful’s members and claims of fraud regarding Marg Wishfill’s solicitations of investments from Mr. Nayyar. PLAINTIFF’S OBJECTIONS AND MOTION T0 STRIKE DEFENDANTS’ EVIDENCE IN OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 4 provided a copy, Greenway would have been entitled, pursuant to the rule of optional completeness, t0 submit additional testimony from the Deposition that would have established facts that completely contradict Defendants’ spin on his testimony, or Greenway would have been entitled to submit evidence with its Motion to establish that any alleged conversation occurred prior to the Settlement Agreement and Release. B. The Affidavits The Affidavits were made by two of Marg Wishful’s members. There are several objectionable statements in the Affidavits, which are, coincidentally, virtually identical. fl is remarkable that two individuals have the exact same recollection of events dating back to early 2017. Because the affidavits are essentially identical, Greenway will lodge its remaining objections to each paragraph of both together. For purposes of Greenway’s objections, Greenway will focus its objections on the following items: (1) relevance (Tex. R. Evid. 401, 402), (2) the affiants’ lack of personal knowledge (Tex. R. Evid. 602); (3) hearsay and reliance on hearsay of Nayyar’s alleged testimony (Tex. R. Evid. 602 , 801, 802), (4) the conclusory statements (Tex. R. Evid. 602, 701); (5) improper legal conclusions, and (6) speculation without any foundation (Tex. R. Evid. 602, 701). Paragraphs 4 7-51 Most notably, both Affidavits repeat the same hearsay included in Nayyar’s deposition, which, as addressed above, is inadmissible hearsay. In both Affidavits (both in paragraph 47), they simply repeat what Nayyar supposedly testified about in his deposition without establishing any personal knowledge. [See Ex. 1 1] 47 and Ex. 2 1] 47.] Remarkably, in paragraph 47 of both affidavits, they both “testify” identically as follows: PLAINTIFF’S OBJECTIONS AND MOTION T0 STRIKE DEFENDANTS’ EVIDENCE IN OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 5 Albeit, unknown to Marg Wishful, myself, and [the other Defendant], both prior to and during the execution of the Settlement Agreement and Release and Second Amendment, Greenway, by and through its agent, Mark Hardaway, wrongfully interfered With Defendants’ relationship With a member of Defendant Marg Wishful by attempting to solicit one of its members, Ashish Nayyar, to do business directly with [Greenway], and to the exclusion of the Defendants. More specifically, Greenway, approached Ashish Nayyar, and stated that if Shawn Rao and Jonathan Serrano were out of the project, the landlord was ready to lease Ashish Nayyar the property. Greenway requested Ashish Nayyar to kick out Shawn Rao and Jonathan Serrano from the Project. This interference made it almost impossible to move forward and complete the project or open. Greenway continued to claim to Ashish Nayyar that it didn’t think Shawn Rao or Jonathan Serrano were capable of opening the project. [Defendants’ Appendix Ex. 1 11 47 (App. 10) Ex. 2 11 47 (App. 108).] The affiants provide no evidence of any personal knowledge of these allegations. Rather, it is clearly based on Nayyar’s hearsay deposition testimony. Indeed, they both say the acts were “unknown” to themselves. [Id.] Furthermore, these paragraphs are replete with conclusory statements based on hearsay.3 For the same reason, Greenway objects to each affiant’s paragraph 48, which remains based on hearsay evidence of which they have no personal knowledge. Additionally, all of these paragraphs contain improper legal conclusions (e. g. Para. 47 - “wrongfully interfered,” Para. 48 - “Plaintiff’s tortious interference and wrongful, fraudulent acts,” Para. 49 — “Based on the foregoing, ’3 6‘ violates the express provision and liquidated damages provision contained in the Settlement Agreement and Release and Second Amendment,” Para. 50 — “Greenway substantially and materially breached” and “its fraudulent conduct and interference,” and Para. 51 — “Plaintiff’s 3 A conclusory statement is one that does not provide the underlying facts to support the conclusion and cannot be readily controverted.” Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991). PLAINTIFF’S OBJECTIONS AND MOTION T0 STRIKE DEFENDANTS’ EVIDENCE IN OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 6 substantial and material breach”). Finally, both Affidavits contain speculation in Paragraph 49 “it is apparent Greenway never intended to comply with the Second Amendment and Settlement Agreement and Release and entered into same with the full intent of defrauding Defendants out of the opportunity While receiving the benefits of a sublease that Defendants put in p1ace.”4 Paragraphs 2-43: Irrelevant Both afflants drone on and one for 41 identical paragraphs about the parties’ original dispute, which everyone agrees was settled on July 1, 2021. [Ex. 1 1N 2-44 (App. 1-8) and Ex. 2 1H 2-44 (App. 99-106).] Indeed, in paragraph 45 of both affidavits, the affiants swear that the Settlement Agreement entered into between the parties includes an “unambiguous ‘Release and Covenant Not to Sue’ on behalf of both parties” for all “claims, known and unknown, though the Effective Date of this Agreement, including . . ..” [Id. 11 45 of both affidavits] Thus, by admitting that the parties agreed to release one another through the Effective Date, which was July 1, 2021, everything that chronologically preceded the releases — including all the alleged facts in paragraphs 2-43 of the affidavits — are entirely irrelevant. 4 Finally, the affiants never identify a single provision of the Settlement Agreement and Release or the Second Amendment that they contend Greenway actually breached. For the foregoing reasons, their statements in paragraph 51 are irrelevant and should be stricken in their entirety. PLAINTIFF’S OBJECTIONS AND MOTION T0 STRIKE DEFENDANTS’ EVIDENCE IN OPPOSITION T0 MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 7 III. CONCLUSION For the reasons explained above, Greenway respectfully requests that this Court sustain its objections set forth above, strike the referenced purported evidence from the record, and not consider the purported evidence When ruling on the Motion. Respectfully submitted, By: /s/ Andrew P. Speicher Andrew P. Speicher State Bar No. 24027878 drew.speicher@figdav.com Amber D. Reece State Bar No. 24079892 amber.reece@f1gdav.com FIGARI + DAVENPORT, LLP 901 Main Street, Suite 3400 Dallas, Texas 75202-3796 (214) 939-2000 (214) 939-2090 (facsimile) ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE On February 24, 2023, the foregoing instrument was filed and served Via efile.txcourts. gov on Defendants’ counsel. /s/ Andrew P. Speicher Andrew P. Speicher PLAINTIFF’S OBJECTIONS AND MOTION TO STRIKE DEFENDANTS’ EVIDENCE IN OPPOSITION TO MOTION FOR PARTIAL SUMMARY JUDGMENT PAGE 8 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Andrew Speicher on behalf of Andrew Speicher Bar No. 24027878 drew.speicher@figdav.com Envelope ID: 73074140 Status as of 2/24/2023 9:15 AM CST Associated Case Party: GREENWAY GOOD LATIMER, L.P. Name BarNumber Email TimestampSubmitted Status Andrew Speicher drew.speicher@figdav.com 2/24/2023 9:08:35 AM SENT Amber D.Reece amber.reece@figdav.com 2/24/2023 9:08:35 AM SENT Case Contacts Name BarNumber Email TimestampSubmitted Status Amy Gatlin amy.gatlin@figdav.com 2/24/2023 9:08:35 AM SENT Danna Walls danna.walls@figdav.com 2/24/2023 9:08:35 AM SENT Associated Case Party: JONATHAN SERRANO Name BarNumber Email TimestampSubmitted Status Baleigh W.Cherry bcherry@albinoldnerlaw.com 2/24/2023 9:08:35 AM SENT John J.Mongogna jmongogna@albinoldnerlaw.com 2/24/2023 9:08:35 AM SENT Molly Lahmers molly@albinoldnerlaw.com 2/24/2023 9:08:35 AM SENT W. ToddAlbin talbin@albinoldnerlaw.com 2/24/2023 9:08:35 AM SENT Associated Case Party: SHAWN RAO Name BarNumber Email TimestampSubmitted Status W. ToddAlbin talbin@albinoldnerlaw.com 2/24/2023 9:08:35 AM SENT Associated Case Party: MARG WISHFUL LLC Name BarNumber Email TimestampSubmitted Status Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Andrew Speicher on behalf of Andrew Speicher Bar No. 24027878 drew.speicher@figdav.com Envelope ID: 73074140 Status as of 2/24/2023 9:15 AM CST Associated Case Party: MARG WISHFUL LLC W. ToddAlbin talbin@albinoldnerlaw.com 2/24/2023 9:08:35 AM SENT