MEMORANDUM OF POINTS AND AUTHORITIES

Case No. XXXX

XXX,                         Plaintiff

vs.

XXXX,

                         Defendant

 IN THE JUSTICE COURT OFXXXX, TX

PRECINCT 5, PLACE 2

 

 

 

MEMORANDUM OF POINTS AND AUTHORITIES

TABLE OF AUTHORITIES

Cases

XXXX

Plaintiff William Kitchen files this Memorandum of Points and Authorities in Support of his request to dismiss Defendant’s Counterclaim and to grant Summary Judgment in Plaintiff’s favor.

       I.            FACTS

This Honorable Court issued an Order on 30/1/23. In said Order, this Court granted Plaintiff’s Motion for Discovery. The Court further ordered Defendant to furnish Plaintiff with access to the documents requested in the discovery on or before 30 days from the date the Order was issued.

On February 26, 2023, Plaintiff emailed Defendant and requested Defendant to inform him of times that she would be available that week to meet in person so that she can provide proof and evidence in compliance with the Court Order.

Plaintiff also sent an email to Defendant on February 27, 2023, where he clarified that the requested documents included any documents Defendant intended on using, including receipts of the alleged purchases that Defendant made on the alleged damaged property.

Defendant has since refused to adhere to the Court Order. First, on February 27, 2023, Defendant emailed Plaintiff and expressed her intention not to adhere to the Court Order. Notably, she argued that Plaintiff already had access to all documents and information he needed. She further asked Plaintiff to be specific with his requests. Lastly, she told Plaintiff that she was not comfortable with meeting Plaintiff in person.

On March 1, 2022 the defendant filed a motion for for more time on discovery citing health concerns providing no proof. The plaintiff objected and ask that the judge find her in contempt

On March 2, 2023, Plaintiff emailed Defendant and warned her of her determination to violate the Court Order directing her to furnish Plaintiff with the documents and information in the discovery requests. Plaintiff noted that Defendant went in person to the Court to file documents, but would not meet the Plaintiff.

On March 6, 2023, Defendant sent Plaintiff an email in which she alleged that she was unable to drive due to pain, swelling and numbness in her lower legs. She stated that she had been placed back in therapy and could not therefore comply with the Court Order directing her to respond to Plaintiff’s discovery requests. Interestingly, she told Plaintiff that she could not meet with Plaintiff, and would instead put everything in the USPS envelope and send it to Plaintiff via mail and email. She also stated that Plaintiff already has all information he was requesting. She further added that there was still time before the trial of the case, therefore Plaintiff was overreacting and needed to rethink his decision to sue her.

On March 6, 2023, Plaintiff emailed Defendant expressing his displeasure with Defendant’s conduct. First, Plaintiff told Defendant to stop using her medical issues as an excuse to avoid adhering to the Court Order. Next, Defendant appeared to be sending documents to Plaintiff’s email. Plaintiff notified Defendant that he never consented to email service. Also, Plaintiff expressed his concerns why Defendant could not meet with him yet she went to the Court in person to file documents.

On March 10, 2023, Defendant field a handwritten request seeking additional 90 days to adhere to the Court Order. She cited medical reasons as ground for her request.

On April 28, 2023, Defendant faxed a document, which appeared to be a communication seeking more time for discovery. In the motion, Defendant claimed to be sick. She alleged that she had been hospitalized for sickle cell anemia. She further alleged that after leaving hospital, she received bad news of her mother who allegedly was dying of liver disease. She therefore appeared to request an additional 90 days to respond to the Court Order directing her to respond to Plaintiff’s discovery requests.

On August 4, 2023, Plaintiff wrote a letter to the Judge expressing his concerns about the Defendant’s dilatory conduct.

    II.             LEGAL ARGUMENTS

        i.             Defendant is abusing the Discovery Process, and should be punished

When the discovery process is abused, a trial court may order sanctions as provided for by Tex. R. Civ. P. 215. The purpose of the 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).

Conduct demonstrating “flagrant bad faith” warrants imposition of “death penalty” sanctions. See Cire v. Cummings, 134 S.W.3d 835, 83 (Tex. 2004). In determining whether such a sanction is warranted, a court must ensure that (1) there is a direct relationship between the improper conduct and the sanctions—i.e., the sanctions must be directed against the abuse and abuser and be tailored to remedy any prejudice the abuse caused—and (2) the sanctions are not excessive. TransAmerican Natural Gas Corp. v. Powell, 811 S.W.2d 913, 917 (Tex. 1991).

If a trial court finds that a party is abusing the discovery process in seeking, making, or resisting discovery, then the trial court may, after notice and hearing, impose any appropriate sanction authorized by Tex. R. Civ. P. 215.2(b)(1)-(5) and Tex. R. Civ. P. 215.3. Rule 215.2(b)(2) permits a trial court to order a disobedient party or the attorney advising him to pay all or any portion of the expenses of discovery, taxable court costs, or both. Tex. R. Civ. P. 215.2(b)(8) permits a trial court to require a party failing to obey an order or the attorney advising him, or both, to pay the reasonable expenses, including attorneys’ fees, caused by the failure to obey the order.

Sanctions are used to assure compliance with discovery and deter those who might be tempted to abuse discovery in the absence of a deterrent. Cire v. Cummings, 134 S.W.3d 835 (Tex. 2004)

In the instant action, Defendant has been avoiding to comply with the Court’s Order directing her to provide the documents requested by Plaintiff. First, Defendant used her medical issues as an excuse to avoid compliance. She has used illness as an excuse to request extensions of time. However, the mischief in this is seen when she physically went to Court to file documents purporting them to be the documents responsive to Plaintiff’s discovery requests. It is noteworthy that said documents are not relevant to Plaintiff’s requests, and are instead a violation of the Court Order, which directed Admissions to be heard on trial and not in discovery. Next, as already stated, Defendant refused to meet physically with Plaintiff, according to Plaintiff’s specific request to Defendant. Instead, Defendant went to Court in person, and also sent Plaintiff documents via email. Plaintiff has never consented to service by email.

      ii.            Defendant violated the Court Order and is in contempt of Court

Contempt may be characterized as either civil or criminal. Civil contempt “consists in failing to do something which the contemnor is required to do by order of the court for the benefit or advantage of a party to the proceeding. Ex parte Wolters, 144 S.W. 531, 587 (Tex.Crim.App. 1911).

The purpose of civil contempt is to coerce the contemnor to comply with some order of the court. Ex Parte Durham, 921 S.W.2d 482 (Tex. App. 1996). Civil contempt is remedial and coercive in nature. It is the process by which a court exerts its judicial authority to compel obedience with the Court’s Order. In re Krueger, No. 03-12-00838-CV (2013) WL 2157765, citing Ex Parte Padron (1978) 565 S.W.2d 921, 924.

This Honorable Court issued an Order on 30/1/23, which directed Defendant to furnish Plaintiff with access to the documents requested in the discovery on or before 30 days from the date the Order was issued.

First, Defendant refused to adhere to the thirty days timeline to file the documents requested by Plaintiff. She kept relying on her medical condition to seek an extension of time. However, she went to the Court in person to file documents. Plaintiff asserts that this Court should not have granted Defendant any additional time.

Next, Defendant filed documents that were prohibited in the Court Order. Notably, the Court directed that admissions should be done in trial. However, the documents Defendant filed are in response to the Request for Admissions.

While filing the documents in court, Defendant attributed the instructions to file the documents in court to Plaintiff. The Plaintiff submitted communication to the court including emails showing the defendants dishonesty. Besides, the documents are irrelevant in this case, and show nothing. It remains that Defendant was against the court order that reserved admissions to oral arguments.

Defendant also sent Plaintiff emails demanding Plaintiff to be specific. However, Defendant did not clarify as to the specifics of what she was seeking clarity on or what she had questions about. But Plaintiff still provided defendant with an example of what he needed. Notably, Plaintiff requested Defendant to provide the following:

  1. Defendant’s Lease Agreement: Any relevant information related to the sublease agreement.
  2. Proof of Damages: Any evidence of any damage to the chair, desk, and other alleged damages, including pictures and receipts of purchase for replacement items from February 12, 2022, to May 13, 2022. Defendant also needs to provide proof of the stains Defendant alleged in her Counterclaim to include video, pictures, documentation.
  3. Communication Regarding Damages: Any communication or correspondence where Defendant advised Plaintiff of any alleged damages during the sublease period.
  4. Itemized Bill of Damages: Any proof that the Defendant sent an itemized bill reflecting the alleged damages once she received a copy of the letter from Michael Delgado with Plaintiff’s forwarding address.
  5. Emotional Distress Claims: Any documents the Defendant intends to offer at trial relating to her emotional distress claims, including proof that Plaintiff caused her injuries.
  6. Alleged Harassment Communication: Any emails or correspondence where the Defendant believes communication amounts to harassment.
  7. Supporting Case or Statutory Law: Any case law or statutory law that supports Defendant’s claims regarding damages, emotional distress, and harassment.
  8. Any documentation that the Defendant has regarding the ring doorbell camera.
  9. Text messages (falls under communication and correspondence).
  10. Proof that Plaintiff was evicted from the Resort on 27th.
  11. Proof that Defendant gave Plaintiff notice to enter Plaintiff’s room.
  12. Proof and statutory law that the Defendant will rely on that shows that the alleged damages or stains constitute as excess wear and tear. Or any contractual agreement that warrants the deductions the defendant took. This includes case law or statues that justifies the deduction the Defendant took for Ring Doorbell citing safety concerns.
  13. Proof that any alleged agreement or contract to make sure Defendant locked the door constitutes as a contract, and meets all of the elements to a contract. This includes proof that Defendant was entering into a contract. Any documentation, statutory or case law citations that support her claims.
  14. Any other evidence that the Defendant intends to provide at trial.
  15. The name and contact information of the individual at MJ Carpet cleaning that allegedly performed the work listed in the documents the Defendant admitted to the court.
  16. The name of the locksmith or agent performing the change of locks the Defendant alleged was performed.

Plaintiff severally requested Defendant through email to meet to inspect the documents. However, Defendant avoided meeting Plaintiff and stated that she was not comfortable meeting Plaintiff.

   iii.             Defendant is approaching the Court with unclean hands

The unclean hands doctrine is based on the public policy that wrongdoers should not be compensated for their immoral acts. See, Ward v. Emmett, 37 S.W.3d 500, 502 (Tex. App.—San Antonio 2001, no pet.); Saks v. Sawtelle, Goode, Davidson & Troilo, 880 S.W.2d 466, 470–71 (Tex. App.—San Antonio 1994, writ denied).

In this action, the conduct of the Defendant as described above shows how she abuses the discovery process by engaging in dilatory tactics. She uses her medical condition to seek extensions of time to fulfill her obligations. She is also in contempt of court for violating express orders from the court.

As such, Defendant should not benefit from her illegal conduct, and should be sanctioned for abusing the judicial process.

 III.            CONCLUSION

The foregoing shows the Defendant’s determined efforts to stall the proceedings of this case through her dilatory conduct. She uses her medical condition as an excuse to avoid following the Court Order. She also keeps on making futile arguments that Plaintiff should not have filed the case against her.

WHEREFORE, the premises considered, Plaintiff requests this Honorable Court to:

  1. Dismiss the Defendant’s counterclaim in its entirety.
  2. Grant the Plaintiff’s counterclaim to include the forthcoming Defamation Count for the Defendant’s blatant lies before court and on public record.
  3. To draw adverse inferences or assume/presume that the evidence the Defendant withheld would be in the plaintiff’s favor.
  4. Subject the Defendant to both physical and mental evaluation to assess if the Defendant’s alleged disability would prevent her from complying with a valid court order as it relates to discovery and a mental assessment as to whether the defendant has any mental issues.
  5. Find Defendant to be in contempt of Court and sanction Defendant accordingly.
  6. Order Defendant to strictly provide all of the documents requested by Plaintiff.
  7. Grant any other Order this Court deems just.

Respectfully submitted,

Dated: __________

______________________________

XXXX

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