Preview
Filed: 12/18/2019 3:35 PM
J OHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 39366751
By: Valerie Millican
12/19/2019 10:51 AM
CAUSE NO. 18-CV-1160
THE DAWN CONDOMINIUM IN THE DISTRICT COURT OF
ASSOCIATION, INC.
GALVESTON COUNTY, TEXAS
INTEGRITY LANDMARK
REALTY, LLC, CATHERINE
VIGGIANO, DOUGLAS SWIFT,
and JOHN VIGGIANO 56 JUDICIAL DISTRICT
PLAINTIFF’S MOTION TO WITHDRAW DEEMED ADMISSIONS
AND FOR LEAVE TO AMENDED REPSPONSES
COMES NOW, The Dawn Condominium Association, Inc. (“Plaintiff”) and files this
Motion to Withdraw Deemed Admissions and Request for Leave of Court to amend responses to
Defendants’ Request for Admissions, pursuant to Texas Rules of Civil Procedure 198.3. In
support, Plaintiff shows the following:
I BACKGROUND
Defendants served their Request for Admissions on October 1, 2019 through the Efiling
for Texas system. Plaintiff's Responses to Request for Admissions were due on or before
October 31, 2019. Plaintiff's failure to respond timely to Defendants’ Request was the result of
an accident and inadvertent mistake due to Plaintiffs counsel being hospitalized and ill rather
than intentional or conscious indifference. In fact, Plaintiff's counsel never opened the e-service
of Defendants’ first requests for discovery, that included the Request for Admissions, the receipt
is attached and marked as Exhibit “A”.
Immediately after receiving Defendants’ Motion to Deem Admissions and Motion to
Compel Discovery Responses, Plaintiff through counsel has formulated responses to all
discovery, including Defendants’ Request for Admissions. Plaintiff has attached hereto a true
copy of Plaintiffs filed and served Responses to Defendants’ Request for Admissions, marked as
Exhibit “B”.
IL. MOTION TO WITHDRAW STANDARD
Under Texas Rules of Civil Procedure 198.3, a Court is may allow a party to withdraw or
amend deemed admissions if: (1) the party shows good cause for the withdraw or amendment;
and (2) Defendants’ will not be unduly prejudiced.
Til. GOOD CAUSE
Plaintiff would have responded timely but for technological mistake and Plaintiffs
counsel becoming ill, being hospitalized and being out of the office throughout the month of
October. The first element of this two-prong analysis under Rule 198.3, "good cause" is
established by showing that the failure involved was an accident or mistake, not intentional or
the result of conscious indifference. Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005). Even a
slight excuse will suffice, especially when delay or prejudice to the opposing party will not
result. In re Kellogg-Brown & Root, Inc., 45 S.W 3d 772, 775 (Tex. App.-Tyler 2001, orig.
proceeding) (quoting Spiecker v. Petroff, 971 S.W 2d 536, 538 (Tex. App.-Dallas 1997, no pet).
As shown in Exhibit A, Plaintiffs counsel did not open the Efiling for Texas service. It
was an accident and mistake that the Defendant’s first requests for discovery, including the
request for admissions, were missed. Failure to timely respond was not done intentionally or due
to conscious indifference. During the time responses were served and due Plaintiffs counsel was
hospitalized and out of the office due to his illness. If it were not for Plaintiffs counsel being
hospitalized and ill Defendant’s request for admissions would have been answered timely as
Plaintiff did with Defendant’s Second Request for Production.
Iv. NO UNDUE PREJUDICE
Plaintiff can show that Defendants will not be unduly prejudiced by the Court allowing
the withdrawal of the deemed admissions and amendment of responses as shown in Exhibit B.
The second element of Rule 198.3, undue prejudice, depends on whether withdrawing an
admission or filing a late response will delay trial or significantly hamper the opposing party's
ability to prepare for it. Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005) (per curiam). In this
case, withdrawing deemed admissions will not delay or prevent Defendants’ from preparing for
trial because the discovery deadline has been extended to January 31, 2020 and trial has been
continued until May 11, 2020. The Courts’ grant of this motion and allowing the Plaintiff leave
to amend responses will not cause a delay in trial and will still allow Defendant sufficient time to
prepare for trial. Defendant will have over one month to request additional discovery in response
to Plaintiff's amended response and over five months to prepare for trial.
Vv CONCLUSION
Plaintiff, therefore, requests that the Court grant its’ Motion to Withdraw Deemed
Admissions and allow Plaintiff to amend responses as shown in Exhibit B because good cause
can be found, and Defendant will not be unduly prejudiced by the withdraw and amendment.
Respectfully submitted,
McLEOD, ALEXANDER, POWEL
& APFFEL, P.C.
/s/ Michael B. Hughe:
Michael B. Hughes
State Bar No. 10227200
802 Rosenberg
P.O. Box 629
Galveston, Texas 77553
mbhughes@mapalaw.com
P: 409.795.2018
F; 409.762.1155
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing instrument was
properly forwarded to counsel of record listed below by:
United States Mail, postage prepaid;
United States Certified Mail (return receipt requested);
Hand Delivery;
Federal Express; and/or
Facsimile Transmission
x
—A_ Electronic Mail
Fred D. Raschke
Megan S. Jones
Mills Shirley, L.L.P.
2228 Mechanic Street, Suite 400
Galveston, Texas 77550
Attorneys for Defendants
on this 18" day of December, 2019.
/s/ Michael B. Hughes
Michael B. Hughes
EXHIBIT “A”
eFiling for Texas - Envelope Receipt Page 1 of 3
Case # 18-CV-1160 - The Dawn Condominium Association
Envelope Information _ ~ - a
Envelope Id Submitted Date Submitted User Name
37283737 10/1/2019 2:39 PM CST kchevalier@millsshirley.com
Case Information —
Location Category Case Type
Galveston County - 56th District Civil - Contract Debt/Contract - Debt Collection
Court
Case Initiation Date Case #
8/23/2018 18-CV-1160
Assigned to Judge
Cox, Lonnie
Filings
Filing Type Filing Code
Serve Service Only
Filing Description
Defendants’ Discovery Requests to
Plaintiff
Client Reference Number
101276.2
Filing Status
Served
Service Document
File Name Description Security Download
2019.10.01 Defs' First RFA to 2019.10.01 Defs' First Does not contain Original File
Plit.pdf RFA to Plt.pdf sensitive data Court Copy
_
——=o oo oo
| File Name Description Security Download
2019.10.01 Defs' First RFP to 2019.10.01 Defs' First Does not contain Original File
Pit paf RFP to Plt.pdf sensitive data Court Copy
toon sooth com oon oo ° co
File Name Description Security Downloa
2019.10.01 Defs' First ROGs to 2019.10.01 Defs' First Does not contain Original File
Plt.pdf ROGs to Plt. pdf sensitive data Court Copy
— 2
https://efile.txcourts.gov/OfsWeb/FileAndServeModule/Envelope/... 11/8/2019
eFiling for Texas - Envelope Receipt Page 2 of 3
| File Name Description Security Download
| 2019.10.01 Defs' RFD to Plt.pdf 2019.10.01 Defs' RFD Does not contain Original File
|
:[ to Plt.paf sensitive data Court Copy
|
eService Details
Status Name Firm Served Date Opened
Sent Michael Hughes McLeod, Alexander, Powel & Apffel Yes Not Opened
Sent Fred Raschke Mills Shirley Yes Not Opened
Sent Elizabeth McDonnell Mills Shirley LLP Yes Not Opened
Sent Megan Jones Mills Shirley LLP Yes Not Opened
Parties with No eService
Name Address
Integrity Landmark Realty, LLC 1718 35th Street Galveston Texas
77550
Name Address
Douglas Swift 1718 35th Street Galveston Texas
77550
Name Address
John Viggiano 1718 35th Street Galveston Texas
77550
Fees
ws een me onnnn ss sn someon i
Service Only
Description Amount
Filing Fee $0.00
Filing Total: $0.00
Total Filing Fee $0.00
Envelope Total: $0.00
Party Responsible Integrity Landmark...
for Fees
Filing Attorney Fred Raschke
Filer Type Not Applicable
https://efile.txcourts.gov/OfsWeb/FileAndServeModule/Envelope/... 11/8/2019
EXHIBIT “B”
CAUSE NO. 18-CV-1160
THE DAWN CONDOMINIUM IN THE DISTRICT COURT OF
ASSOCIATION, INC.
GALVESTON COUNTY, TEXAS
INTEGRITY LANDMARK
REALTY, LLC, CATHERINE
VIGGIANO, DOUGLAS SWIFT,
and J OHN VIGGIANO 56" JUDICIAL DISTRICT
PLAINTIFF’S ANSWERS TO DEFENDANTS’
FIRST REQUEST FOR ADMISSIONS
TO Defendants, Integrity Landmark Realty, LLC, Catherine Viggiano, Douglas Swift and
John Viggiano, by and through their attorneys of record, Fred D, Raschke and Megan S.
Jones, Mills Shirley LLP, 2228 Mechanic Street, Suite 400, Galveston, Texas 77550.
COMES NOW Plaintiff, The Dawn Condominium Association, Inc., and pursuant to the
Texas Rules of Civil Procedure, hereby serves upon counsel for Defendants, its Answers to
Defendants’ First Request for Admissions.
Respectfully submitted,
McLEOD, ALEXANDER, POWEL
& APFFEL, P.C. .
/s/ Michael B. Hughe:
Michael B. Hughes
State Bar No. 10227200
802 Rosenberg
P.O. Box 629
Galveston, Texas 77553
mbhughes@mapalaw.com
P: 409.795.2018
F: 409.762.1155
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
Thereby certify that a true and correct copy of the above and foregoing instrument was
properly forwarded to counsel of record listed below by:
United States Mail, postage prepaid;
United States Certified Mail (return receipt requested);
Hand Delivery;
Federal Express; and/or
Facsimile Transmission
X_ Electronic Mail
Fred D, Raschke
Megan S. Jones
Mills Shirley, L.L.P.
2228 Mechanic Street, Suite 400
Galveston, Texas 77550
Attorneys for Defendants
on this 17" day of December, 2019.
/s/ Michael B. Hughe:
Michael B. Hughes
PLAINTIFF’S ANSWERS TO DEFENDANTS’
FIRST REQUEST FOR ADMISSIONS
Admit that Integrity paid all rent due to The Dawn under the Lease and owes no unpaid
rent.
ANSWER:
Denied. Integrity owes for 28 months of rent.
Admit that Integrity performed maintenance services at The Dawn.
ANSWER:
Denied. Integrity hired independent contractors to perform maintenance work and had
the bill directed to Plaintiff. On some occasions, an employee of Integrity would perform
routine maintenance work.
Admit that The Dawn failed to pay Integrity and transfer fees.
ANSWER:
Denied, Dawn did pay $7,600.00 in transfer fees to Defendant.
Admit that The Dawn failed to pay Integrity the severance amount due under the
Contract.
ANSWER:
Denied in that Integrity is owed severance fees under the contract because Integrity was
in breach of the contract when they were told to leave the premises.
Preview
Filed: 12/18/2019 3:35 PM J OHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 39366751 By: Valerie Millican 12/19/2019 10:51 AM CAUSE NO. 18-CV-1160 THE DAWN CONDOMINIUM IN THE DISTRICT COURT OF ASSOCIATION, INC. GALVESTON COUNTY, TEXAS INTEGRITY LANDMARK REALTY, LLC, CATHERINE VIGGIANO, DOUGLAS SWIFT, and JOHN VIGGIANO 56 JUDICIAL DISTRICT PLAINTIFF’S MOTION TO WITHDRAW DEEMED ADMISSIONS AND FOR LEAVE TO AMENDED REPSPONSES COMES NOW, The Dawn Condominium Association, Inc. (“Plaintiff”) and files this Motion to Withdraw Deemed Admissions and Request for Leave of Court to amend responses to Defendants’ Request for Admissions, pursuant to Texas Rules of Civil Procedure 198.3. In support, Plaintiff shows the following: I BACKGROUND Defendants served their Request for Admissions on October 1, 2019 through the Efiling for Texas system. Plaintiff's Responses to Request for Admissions were due on or before October 31, 2019. Plaintiff's failure to respond timely to Defendants’ Request was the result of an accident and inadvertent mistake due to Plaintiffs counsel being hospitalized and ill rather than intentional or conscious indifference. In fact, Plaintiff's counsel never opened the e-service of Defendants’ first requests for discovery, that included the Request for Admissions, the receipt is attached and marked as Exhibit “A”. Immediately after receiving Defendants’ Motion to Deem Admissions and Motion to Compel Discovery Responses, Plaintiff through counsel has formulated responses to all discovery, including Defendants’ Request for Admissions. Plaintiff has attached hereto a true copy of Plaintiffs filed and served Responses to Defendants’ Request for Admissions, marked as Exhibit “B”. IL. MOTION TO WITHDRAW STANDARD Under Texas Rules of Civil Procedure 198.3, a Court is may allow a party to withdraw or amend deemed admissions if: (1) the party shows good cause for the withdraw or amendment; and (2) Defendants’ will not be unduly prejudiced. Til. GOOD CAUSE Plaintiff would have responded timely but for technological mistake and Plaintiffs counsel becoming ill, being hospitalized and being out of the office throughout the month of October. The first element of this two-prong analysis under Rule 198.3, "good cause" is established by showing that the failure involved was an accident or mistake, not intentional or the result of conscious indifference. Wheeler v. Green, 157 S.W.3d 439, 442 (Tex. 2005). Even a slight excuse will suffice, especially when delay or prejudice to the opposing party will not result. In re Kellogg-Brown & Root, Inc., 45 S.W 3d 772, 775 (Tex. App.-Tyler 2001, orig. proceeding) (quoting Spiecker v. Petroff, 971 S.W 2d 536, 538 (Tex. App.-Dallas 1997, no pet). As shown in Exhibit A, Plaintiffs counsel did not open the Efiling for Texas service. It was an accident and mistake that the Defendant’s first requests for discovery, including the request for admissions, were missed. Failure to timely respond was not done intentionally or due to conscious indifference. During the time responses were served and due Plaintiffs counsel was hospitalized and out of the office due to his illness. If it were not for Plaintiffs counsel being hospitalized and ill Defendant’s request for admissions would have been answered timely as Plaintiff did with Defendant’s Second Request for Production. Iv. NO UNDUE PREJUDICE Plaintiff can show that Defendants will not be unduly prejudiced by the Court allowing the withdrawal of the deemed admissions and amendment of responses as shown in Exhibit B. The second element of Rule 198.3, undue prejudice, depends on whether withdrawing an admission or filing a late response will delay trial or significantly hamper the opposing party's ability to prepare for it. Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005) (per curiam). In this case, withdrawing deemed admissions will not delay or prevent Defendants’ from preparing for trial because the discovery deadline has been extended to January 31, 2020 and trial has been continued until May 11, 2020. The Courts’ grant of this motion and allowing the Plaintiff leave to amend responses will not cause a delay in trial and will still allow Defendant sufficient time to prepare for trial. Defendant will have over one month to request additional discovery in response to Plaintiff's amended response and over five months to prepare for trial. Vv CONCLUSION Plaintiff, therefore, requests that the Court grant its’ Motion to Withdraw Deemed Admissions and allow Plaintiff to amend responses as shown in Exhibit B because good cause can be found, and Defendant will not be unduly prejudiced by the withdraw and amendment. Respectfully submitted, McLEOD, ALEXANDER, POWEL & APFFEL, P.C. /s/ Michael B. Hughe: Michael B. Hughes State Bar No. 10227200 802 Rosenberg P.O. Box 629 Galveston, Texas 77553 mbhughes@mapalaw.com P: 409.795.2018 F; 409.762.1155 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the above and foregoing instrument was properly forwarded to counsel of record listed below by: United States Mail, postage prepaid; United States Certified Mail (return receipt requested); Hand Delivery; Federal Express; and/or Facsimile Transmission x —A_ Electronic Mail Fred D. Raschke Megan S. Jones Mills Shirley, L.L.P. 2228 Mechanic Street, Suite 400 Galveston, Texas 77550 Attorneys for Defendants on this 18" day of December, 2019. /s/ Michael B. Hughes Michael B. Hughes EXHIBIT “A” eFiling for Texas - Envelope Receipt Page 1 of 3 Case # 18-CV-1160 - The Dawn Condominium Association Envelope Information _ ~ - a Envelope Id Submitted Date Submitted User Name 37283737 10/1/2019 2:39 PM CST kchevalier@millsshirley.com Case Information — Location Category Case Type Galveston County - 56th District Civil - Contract Debt/Contract - Debt Collection Court Case Initiation Date Case # 8/23/2018 18-CV-1160 Assigned to Judge Cox, Lonnie Filings Filing Type Filing Code Serve Service Only Filing Description Defendants’ Discovery Requests to Plaintiff Client Reference Number 101276.2 Filing Status Served Service Document File Name Description Security Download 2019.10.01 Defs' First RFA to 2019.10.01 Defs' First Does not contain Original File Plit.pdf RFA to Plt.pdf sensitive data Court Copy _ ——=o oo oo | File Name Description Security Download 2019.10.01 Defs' First RFP to 2019.10.01 Defs' First Does not contain Original File Pit paf RFP to Plt.pdf sensitive data Court Copy toon sooth com oon oo ° co File Name Description Security Downloa 2019.10.01 Defs' First ROGs to 2019.10.01 Defs' First Does not contain Original File Plt.pdf ROGs to Plt. pdf sensitive data Court Copy — 2 https://efile.txcourts.gov/OfsWeb/FileAndServeModule/Envelope/... 11/8/2019 eFiling for Texas - Envelope Receipt Page 2 of 3 | File Name Description Security Download | 2019.10.01 Defs' RFD to Plt.pdf 2019.10.01 Defs' RFD Does not contain Original File | :[ to Plt.paf sensitive data Court Copy | eService Details Status Name Firm Served Date Opened Sent Michael Hughes McLeod, Alexander, Powel & Apffel Yes Not Opened Sent Fred Raschke Mills Shirley Yes Not Opened Sent Elizabeth McDonnell Mills Shirley LLP Yes Not Opened Sent Megan Jones Mills Shirley LLP Yes Not Opened Parties with No eService Name Address Integrity Landmark Realty, LLC 1718 35th Street Galveston Texas 77550 Name Address Douglas Swift 1718 35th Street Galveston Texas 77550 Name Address John Viggiano 1718 35th Street Galveston Texas 77550 Fees ws een me onnnn ss sn someon i Service Only Description Amount Filing Fee $0.00 Filing Total: $0.00 Total Filing Fee $0.00 Envelope Total: $0.00 Party Responsible Integrity Landmark... for Fees Filing Attorney Fred Raschke Filer Type Not Applicable https://efile.txcourts.gov/OfsWeb/FileAndServeModule/Envelope/... 11/8/2019 EXHIBIT “B” CAUSE NO. 18-CV-1160 THE DAWN CONDOMINIUM IN THE DISTRICT COURT OF ASSOCIATION, INC. GALVESTON COUNTY, TEXAS INTEGRITY LANDMARK REALTY, LLC, CATHERINE VIGGIANO, DOUGLAS SWIFT, and J OHN VIGGIANO 56" JUDICIAL DISTRICT PLAINTIFF’S ANSWERS TO DEFENDANTS’ FIRST REQUEST FOR ADMISSIONS TO Defendants, Integrity Landmark Realty, LLC, Catherine Viggiano, Douglas Swift and John Viggiano, by and through their attorneys of record, Fred D, Raschke and Megan S. Jones, Mills Shirley LLP, 2228 Mechanic Street, Suite 400, Galveston, Texas 77550. COMES NOW Plaintiff, The Dawn Condominium Association, Inc., and pursuant to the Texas Rules of Civil Procedure, hereby serves upon counsel for Defendants, its Answers to Defendants’ First Request for Admissions. Respectfully submitted, McLEOD, ALEXANDER, POWEL & APFFEL, P.C. . /s/ Michael B. Hughe: Michael B. Hughes State Bar No. 10227200 802 Rosenberg P.O. Box 629 Galveston, Texas 77553 mbhughes@mapalaw.com P: 409.795.2018 F: 409.762.1155 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the above and foregoing instrument was properly forwarded to counsel of record listed below by: United States Mail, postage prepaid; United States Certified Mail (return receipt requested); Hand Delivery; Federal Express; and/or Facsimile Transmission X_ Electronic Mail Fred D, Raschke Megan S. Jones Mills Shirley, L.L.P. 2228 Mechanic Street, Suite 400 Galveston, Texas 77550 Attorneys for Defendants on this 17" day of December, 2019. /s/ Michael B. Hughe: Michael B. Hughes PLAINTIFF’S ANSWERS TO DEFENDANTS’ FIRST REQUEST FOR ADMISSIONS Admit that Integrity paid all rent due to The Dawn under the Lease and owes no unpaid rent. ANSWER: Denied. Integrity owes for 28 months of rent. Admit that Integrity performed maintenance services at The Dawn. ANSWER: Denied. Integrity hired independent contractors to perform maintenance work and had the bill directed to Plaintiff. On some occasions, an employee of Integrity would perform routine maintenance work. Admit that The Dawn failed to pay Integrity and transfer fees. ANSWER: Denied, Dawn did pay $7,600.00 in transfer fees to Defendant. Admit that The Dawn failed to pay Integrity the severance amount due under the Contract. ANSWER: Denied in that Integrity is owed severance fees under the contract because Integrity was in breach of the contract when they were told to leave the premises.