FILED

DALLAS COUNTY
6/29/2018 5:44 PM
FELICIA PITRE
DISTRICT CLERK

NO. DC-17-00183

ORIGIN RELEASING, L.L.C., § IN THE DISTRICT COURT

§
Plaintiff, §
§
vs. § DALLAS COUNTY, TEXAS
§
HANNOVER HOUSE, INC., §
§
Defendant. § 116TH JUDICIAL DISTRICT

__________________________________________________________________

PLAINTIFF'S OBJECTIONS TO DEFENDANT’S RESPONSE

TO ITS MOTION FOR PARTIAL SUMMARY JUDGMENT
__________________________________________________________________

Comes Now, ORIGIN RELEASING, L.L.C., as the successor in interest and

assign, ("Plaintiff"), files this Plaintiff's Objections (the “Objections”) to

Defendant’s Response to Its Motion for Partial Summary Judgment (the

“Response”), and would respectfully show the Court as follows:

I. OBJECTIONS TO DEFENDANT’S RESPONSE

A. Objections to Response as Evidence.

1. The Response contains several general denials that are neither

supported by law nor evidence. 1 It is well established that pleadings are not

1
Plaintiff specifically objects to the paragraphs 1-16 of the Response on these grounds.

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PLAINTIFF'S OBJECTIONS TO DEFENDANT’S RESPONSE
TO ITS MOTION FOR PARTIAL SUMMARY JUDGMENT Page 1
competent summary judgment evidence. 2 Accordingly, Plaintiff objects to the

Response as it does not provide competent summary judgment evidence and should

not be given any weight.

B. Objections to Raising Defenses that Have not Been Pleaded.

2. Defendant’s Original Answer, which has not been amended to date, is

a general denial and contains no affirmative defenses. Defendant may not assert

defenses not properly pleaded in order to survive summary judgment. Plaintiff

objects to such affirmative defenses and further expressly denies that such defenses

are being heard or tried by consent

II. OBJECTIONS TO DEFENDANT’S EVIDENCE IN SUPPORT

3. Plaintiff objects to the Affidavit in Support of Defendant’s Response to

Plaintiff’s Motion for Partial Summary Judgment. Plaintiff’s (the “Affidavit”) for

the reasons set forth herein below.

2
See Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995);
Americana Motel, Inc. v. Johnson, 610 S.W.2d 143, 143 (Tex. 1980); Hidalgo v. Surety Sav. &
Loan Ass'n., 462 S.W.2d 540, 545 (Tex. 1971).

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PLAINTIFF'S OBJECTIONS TO DEFENDANT’S RESPONSE
TO ITS MOTION FOR PARTIAL SUMMARY JUDGMENT Page 2
A. Paragraph 1 of the Affidavit and Objections:

BEFORE ME, the undersigned Notary Public, personally appeared Eric Parkinson, who,

aficr being by me first duly sworn, deposed and stated 011 oath that he is the Plaintiff, and that

he has personal knowledge of thc facts herein set forth and is duly authorized to make this

Affidavit, and is competent 10 testify to the memers herein contained and the facts stated are true

and con‘ect. This affidavit is based upon my personal knowledge and my review ofthc business

records ofmy company rcgarding this matter and the infbrmation contained therein. I have also

been an active panicipant in running Hannover House for many years.

4. Plaintiff objects to the preceding Paragraph of the Affidavit on the

following grounds:

a) Lack Personal Knowledge. This Paragraph incorrectly identifies the

affiant as the Plaintiff. The affiant is Eric Parkinson (“Affiant”), who is

presumably associated with the named Defendant. There is nothing

explaining the relationship of Affiant to the actual Defendant. There is

nothing in the Affidavit that affirmatively shows the basis upon which

Affiant is capable of testifying, nor that the business records he purportedly

reviewed that he says is his, is actually the Defendant.3

3
Kerlin v. Arias, 274 S.W.3d 666, 668 (Tex. 2008); Spradlin v. State, 100 S.W.3d 372, 381
(Tex.App.–Houston [1st Dist.] 2002, no pet.) (excluded statements in affidavit not based on
personal knowledge from summary judgment evidence). Rizkallah v. Conner, 952 S.W.2d 580,
586-88 (Tex. 1997).

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PLAINTIFF'S OBJECTIONS TO DEFENDANT’S RESPONSE
TO ITS MOTION FOR PARTIAL SUMMARY JUDGMENT Page 3
 b) Conclusory. Plaintiff objects to the extent the Affidavit states that the

Affiant is “competent to testify” on the grounds that such assertion is

conclusory. Such statement is a legal conclusion of no probative force and

does not support summary judgment.4 The effect of having such sentence

results in a lack of competence objection, as there is no evidence that

Affiant is of sound mount, at least 21 years of age and otherwise capable

of making the Affidavit.

c) Fails to Lay Proper Predicate. Affiant fails to lay the proper predicate for

him to provide a business records affidavit as it fails to state that the

information upon which he relies were actually business records of the

Defendant.5

d) Hearsay. Affiant is referencing the content of other unidentified

documents, making the statement hearsay and not competent summary

judgment evidence. 6

e) Best Evidence. Affiant’s statements as to the terms of the content of

various unidentified records is not the best evidence available of the terms

4
Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991).
5
Life Ins. Co. v. Gar-Dal, Inc., 870 S.W.3d 378, 380-81 (Tex. 1978).
6
Powell v. Vavro, McDonald & Assocs., 136 S.W.3d 762, 765 (Tex.App.—Dallas 2004, no
pet.)(hearsay statements in summary judgment affidavits were inadmissible and should have
been excluded).

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PLAINTIFF'S OBJECTIONS TO DEFENDANT’S RESPONSE
TO ITS MOTION FOR PARTIAL SUMMARY JUDGMENT Page 4
 of the agreements or dealings with the parties. The best evidence would be

the actual documents upon which Affiant relies, which are not known and

therefore clearly not part of the summary judgment record.7

B. Paragraph 2 of the Affidavit and Objections:

Plaintiff has several factual claims that are not correct in their motion. The contracts

about the Movies were not entered into with Plaintiff but With separate movie companies. There

is no assignment 0f the Movies 10 Plaintiff that I have ever seen,

5. Plaintiff objects to the preceding Paragraph of the Affidavit on the

following grounds:

a) Conclusory. Plaintiff objects to the first sentence of this Paragraph

as conclusory. 8

b) Hearsay. Affiant is referencing the content of documents without

specifically identifying the contracts for which he references,

making the statement hearsay and not competent summary judgment

evidence.9

7
Tex. R. Evid. 1002.
8
Hou-Tex., Inc. v. Landmark Graphics, 26 S.W.3d 103, 112 (Tex.App.—Houston [14t Dist.]
2000, no pet.); Elizondo v. Krist, 415 S.W.3d 259, 264 (Tex. 2013) (stating that conclusory
statements are not summary judgment proof).
9
Powell v. Vavro, McDonald & Assocs., 136 S.W.3d 762, 765 (Tex.App.—Dallas 2004, no
pet.)(hearsay statements in summary judgment affidavits were inadmissible and should have
been excluded).

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PLAINTIFF'S OBJECTIONS TO DEFENDANT’S RESPONSE
TO ITS MOTION FOR PARTIAL SUMMARY JUDGMENT Page 5
 c) Best Evidence. Affiant’s statements as to the terms of the “contracts

about the Movies” and the parties thereto is not the best evidence

available and should be disregarded.10

d) Lack of Personal Knowledge. Plaintiff objects to the third sentence

of this Paragraph as Affiant admits that he is unaware of whether

there was an assignment agreement, not that one does not exist.

Inasmuch as Affiant cannot affirmatively state that no assignment

exists, but only his opinion and speculation, which are not based

upon his personal knowledge, are not competent summary judgment

evidence to be considered. 11

e) Inadmissible as Irrelevant. Defendant is required to present

evidence in the form that would be admissible at trial. 12 Plaintiff

never claimed that Origin Releasing, LLC directly contracted with

Hannover House, Inc. Plaintiff clearly defined “Plaintiff” as the

successor in interest and assign. Plaintiff also specifically identified

Origin Releasing, LLC’s predecessors in interest in Paragraphs 14-

16 of Plaintiff’s Motion for Partial Summary Judgment (the

10
Tex. R. Evid. 1002.
11
Kerlin, 274 S.W.3d at 668; Spradlin, 100 S.W.3d at 381); Rizkallah, 952 S.W.2d at 586-88.
12
Tex. R. Civ. P. 166a(f).

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PLAINTIFF'S OBJECTIONS TO DEFENDANT’S RESPONSE
TO ITS MOTION FOR PARTIAL SUMMARY JUDGMENT Page 6
 b) Conclusory. Affiant’s assertion that the Media Advertisements would

meet “reasonable legal standards as an admission of net monies due” is

a legal conclusion that is not competent summary judgment evidence.22

c) Not an Expert. Plaintiff objects to the extent Affiant attempts to testify

as an expert regarding the industry or accounting within the industry as

Defendant has not designated Affiant in such capacity and the deadlines

to do so have expired.

F. Paragraph 6 of the Affidavit and Objections:

The September 3012 email was correct at the lime i1 was sent but there ware extensive

unsold product returns thal were later showu to be realized,

9. Plaintiff objects to the preceding Paragraph of the Affidavit on the

following grounds:

a) Best Evidence. Affiant’s assertion of “extensive unsold product returns”

that were later realized is not the best evidence of the existence of such

fact. Evidence of such returns would have been documented by shipping

records, invoices or other related documents. Affiant has tendered nothing

but his conclusion. As such, Paragraph 6 is not the best evidence of the

22
Life Ins. Co., 870 S.W.3d at 381-82.

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PLAINTIFF'S OBJECTIONS TO DEFENDANT’S RESPONSE
TO ITS MOTION FOR PARTIAL SUMMARY JUDGMENT Page 11
 D. Paragraph 4 of the Affidavit and Objections:

Defendant disputes about thc claim in paragraph 18 ihat Defendant failed to provide

“the contractually required sales and accouming information". HHSE’S director of sales.

Anthony Perez, provided Plaintifi'wilh the detailed monthly sales reports directly fi‘om Phase 4

1 believe that Plaintiffcancelled the Movie agreements in orderto form their own home video

company. Plaintiff did hire Amhony Perez away fi-om HHSE where he performed the same

duties but for their new operalinn

7. Plaintiff objects to the preceding Paragraph of the Affidavit on the

following grounds:

a) Conclusory. Unsupported conclusory statements are not summary

judgment proof. 15 Affidavits must be based upon facts and cannot merely

recite a conclusion. 16 Plaintiff’s statement denying an allegation is merely

a conclusion without a single fact to support this conclusion.

b) Hearsay. Affiant is referencing the communications and conduct of third

parties without providing any foundation or predicate to demonstrate how

it would know such information in a manner that would be admissible at

15
Purcell v. Bellinger, 940 S.W.2d 599, 601-02 (Tex. 1997).
16
Krist, 415 S.W.3d at 264.

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PLAINTIFF'S OBJECTIONS TO DEFENDANT’S RESPONSE
TO ITS MOTION FOR PARTIAL SUMMARY JUDGMENT Page 8
 11. Plaintiff objects to the preceding Paragraph of the Affidavit on the

following grounds:

a) Hearsay. Affiant is referencing the content of other alleged agreements,

making the statement hearsay and not competent summary judgment

evidence. 31

b) Best Evidence. Affiant’s statements as to the terms of the termination

agreement is not the best evidence available of the terms of the termination

agreement. The best evidence would be the actual termination agreement,

which is not part of the summary judgment record.32

J. Paragraph 11 of the Affidavit and Objections:

l also beiieve that HHSE would be owed money from other titles that were to be cross

collateralized per other agreements. These other lities that lost money would be Upon a

Midnight Clear and Deceptz.

12. Plaintiff objects to the preceding Paragraph of the Affidavit on the

following grounds:

31
Powell v. Vavro, McDonald & Assocs., 136 S.W.3d 762, 765 (Tex.App.—Dallas 2004, no
pet.)(hearsay statements in summary judgment affidavits were inadmissible and should have
been excluded).
32
Tex. R. Evid. 1002.

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PLAINTIFF'S OBJECTIONS TO DEFENDANT’S RESPONSE
TO ITS MOTION FOR PARTIAL SUMMARY JUDGMENT Page 15
 Plaintiff was properly paid. Further, Affiant’s hearsay assertion that a third

party provided monthly detailed sales reports, does not address the crux of

the complaint, which is that such reports, when they were provided were

inaccurate.

E. Paragraph 5 of the Affidavit and Objections:

The blog post document attached to the motion refers t0 shipments and the gross values

of such shipments: it does not elaborate on the costs ofpending credits for returns, 01' deduct for

the applicable HHSE sales fee. manufacturing costs, marketing costs or freight. Accordingly,

such a blog entry does not meet reporting requirements of a producer's accounting statement

nor does it meet any reasonable legal standards as an admission ofuet monies due.

8. Plaintiff objects to the preceding Paragraph of the Affidavit on the

following grounds:

a) Inadmissible as Irrelevant. Defendant is required to present evidence

in the form that would be admissible at trial. 21 Plaintiff was clear that

the Motion was for liability only because there is a dispute as to the

amount of damages owed to Plaintiff.

21
Tex. R. Civ. P. 166a(f).

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PLAINTIFF'S OBJECTIONS TO DEFENDANT’S RESPONSE
TO ITS MOTION FOR PARTIAL SUMMARY JUDGMENT Page 10
 b) Conclusory. Affiant’s assertion that the Media Advertisements would

meet “reasonable legal standards as an admission of net monies due” is

a legal conclusion that is not competent summary judgment evidence.22

c) Not an Expert. Plaintiff objects to the extent Affiant attempts to testify

as an expert regarding the industry or accounting within the industry as

Defendant has not designated Affiant in such capacity and the deadlines

to do so have expired.

F. Paragraph 6 of the Affidavit and Objections:

The September 3012 email was correct at the lime i1 was sent but there ware extensive

unsold product returns thal were later showu to be realized,

9. Plaintiff objects to the preceding Paragraph of the Affidavit on the

following grounds:

a) Best Evidence. Affiant’s assertion of “extensive unsold product returns”

that were later realized is not the best evidence of the existence of such

fact. Evidence of such returns would have been documented by shipping

records, invoices or other related documents. Affiant has tendered nothing

but his conclusion. As such, Paragraph 6 is not the best evidence of the

22
Life Ins. Co., 870 S.W.3d at 381-82.

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PLAINTIFF'S OBJECTIONS TO DEFENDANT’S RESPONSE
TO ITS MOTION FOR PARTIAL SUMMARY JUDGMENT Page 11
 conclusory facts stated therein and is therefore barred by the best evidence

rule.23

b) Conclusory. Unsupported conclusory statements are not summary

judgment proof. 24 Affidavits must be based upon facts and cannot merely

recite a conclusion.25 Plaintiff’s statement in this Paragraph is nothing

more than a conclusion attempting to negate an admission that monies

were due and owing to Plaintiff. The conclusory statement is not

competent summary judgment evidence.

G. Paragraph 7 of the Affidavit and Objections:

One 0f the documents attached to the motion is what is claimed to be an invoice

showing HHSE ordering new titles in May 2013. This is a Phase 4 (not HHSE) generated

document to specify the details Of total units that had been previously returned 10 HHSE in the

past fiom outside vendors. [think may have been fortheir ilwentory reconciliation back up.

Someone would have to ask Phase 4 why they waited until near their fiscal year-end to generate

such an inventory document. But those unit quantities listed are Within 21 9500 accuracy Ofwhat

HHSE actually revived from unsold product mums 0fthose titles fi'om Phase 4 -
which were

previously itemized 0n the tiIlc producer slammems provided to plaintiff‘s predecessor.

23
Tex. R. Evid. 1002.
24
Purcell v. Bellinger, 940 S.W.2d 599, 601-02 (Tex. 1997).
25
Krist, 415 S.W.3d at 264.

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PLAINTIFF'S OBJECTIONS TO DEFENDANT’S RESPONSE
TO ITS MOTION FOR PARTIAL SUMMARY JUDGMENT Page 12
 10. Plaintiff objects to the preceding Paragraph of the Affidavit on the

following grounds:

a) Best Evidence. Affiant’s assertion and interpretation of documents of a

third party is not the best evidence as to such documents. As such,

Paragraph 7 is not the best evidence of the conclusory facts stated therein

and is therefore barred by the best evidence rule.26

b) Lack of Knowledge. Affiant’s “thoughts” as to what a document may or

may not be or what its purpose may have been is mere speculation and is

not proper summary judgment evidence. In fact, Affiant affirms that Phase

4 is the entity with whom the necessary information that he is speculating

about could be obtained through. Statements based upon a parties’ belief

is not evidence, as it does not show that such fact is true or correct. 27

c) Hearsay. Affiant is referencing the communications and conduct of third

parties without providing any foundation or predicate to demonstrate how

it would know such information in a manner that would be admissible at

trial. Affiant is not part of Phase 4, has not asserted that such invoices are

part of its business records or otherwise taken steps to overcome the

26
Tex. R. Evid. 1002.
27
Price v. American Nat’l Ins., 113 S.W.3d 424, 429-30 (Tex.App.—Houston [14th] Dist. 2002,
no pet.).

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PLAINTIFF'S OBJECTIONS TO DEFENDANT’S RESPONSE
TO ITS MOTION FOR PARTIAL SUMMARY JUDGMENT Page 13
 hearsay issues with testifying as to third party documents. These

statements of what a third party communicated to Plaintiff are hearsay and,

therefore, not competent summary judgment evidence. 28

d) Conclusory. Unsupported conclusory statements are not summary

judgment proof. 29 Affidavits must be based upon facts and cannot merely

recite a conclusion.30 Plaintiff’s statements in this Paragraph are nothing

more than conclusions.

e) Not an Expert. Plaintiff objects to the extent Affiant attempts to testify as

an expert regarding the interpretation of third party documents and the

accuracy of the same as Defendant has not designated Affiant in such

capacity and the deadlines to do so have expired.

I. Paragraph 10 of the Affidavit and Objections:

The termination agreemem entered into between the parties allowed for sales ofthe

inventoxy for 6 months. HHSE had very small amounts of such sales as shown by the evidence

we provided to Plaintiff.

28
Powell v. Vavro, McDonald & Assocs., 136 S.W.3d 762, 765 (Tex.App.—Dallas 2004, no
pet.)(hearsay statements in summary judgment affidavits were inadmissible and should have
been excluded).
29
Purcell v. Bellinger, 940 S.W.2d 599, 601-02 (Tex. 1997).
30
Krist, 415 S.W.3d at 264.

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PLAINTIFF'S OBJECTIONS TO DEFENDANT’S RESPONSE
TO ITS MOTION FOR PARTIAL SUMMARY JUDGMENT Page 14
 11. Plaintiff objects to the preceding Paragraph of the Affidavit on the

following grounds:

a) Hearsay. Affiant is referencing the content of other alleged agreements,

making the statement hearsay and not competent summary judgment

evidence. 31

b) Best Evidence. Affiant’s statements as to the terms of the termination

agreement is not the best evidence available of the terms of the termination

agreement. The best evidence would be the actual termination agreement,

which is not part of the summary judgment record.32

J. Paragraph 11 of the Affidavit and Objections:

l also beiieve that HHSE would be owed money from other titles that were to be cross

collateralized per other agreements. These other lities that lost money would be Upon a

Midnight Clear and Deceptz.

12. Plaintiff objects to the preceding Paragraph of the Affidavit on the

following grounds:

31
Powell v. Vavro, McDonald & Assocs., 136 S.W.3d 762, 765 (Tex.App.—Dallas 2004, no
pet.)(hearsay statements in summary judgment affidavits were inadmissible and should have
been excluded).
32
Tex. R. Evid. 1002.

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PLAINTIFF'S OBJECTIONS TO DEFENDANT’S RESPONSE
TO ITS MOTION FOR PARTIAL SUMMARY JUDGMENT Page 15
 a) Lack of Knowledge. Affiant’s “belief” is mere speculation and is not

proper summary judgment evidence. Statements based upon a parties’

belief is not evidence, as it does not show that such fact is true or correct. 33

b) Hearsay. Affiant is referencing the content of other alleged agreements,

making the statement hearsay and not competent summary judgment

evidence. 34

c) Best Evidence. If Affiant believes Plaintiff owed monies on other titles

and that those monies were to be cross collateralized, he should have

provided documents showing the monies owed by Plaintiff and provided

the agreements providing for cross collateralization. 35

III. PRAYER

WHEREFORE PREMSIES CONSIDERED, Plaintiff prays that the Court

sustain the objections raised herein, find that no question of material fact exists

concerning the elements of Plaintiff’s claims, grant Plaintiff’s Motion for Partial

Summary Judgment and find the Defendant liable to Plaintiff for breach of contract

33
Price v. American Nat’l Ins., 113 S.W.3d 424, 429-30 (Tex.App.—Houston [14th] Dist. 2002,
no pet.).
34
Powell v. Vavro, McDonald & Assocs., 136 S.W.3d 762, 765 (Tex.App.—Dallas 2004, no
pet.)(hearsay statements in summary judgment affidavits were inadmissible and should have
been excluded).
35
Tex. R. Evid. 1002.

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PLAINTIFF'S OBJECTIONS TO DEFENDANT’S RESPONSE
TO ITS MOTION FOR PARTIAL SUMMARY JUDGMENT Page 16
and quantum meruz't, while leaving for later determination the amount 0f actual

damages plus all applicable interest, costs, and attorneys’ fees. Plaintiff further

requests all such other and further relief to which Plaintiff is justly entitled.

Respectfillly Submitted,

SHEILS WINNUBST
A Professional Corporation

By: /s/Latrice E.Andrews

Latrice E. Andrews
State Bar N0. 24063984
Kimberly Quirk
State Bar N0. 24104776

1 100 Atrium II

1701 N. Collins Boulevard

Richardson, Texas 75080
Telephone: (972) 644-8181
Facsimile: (972) 644-8 1 80
Email: latrice@sheilswinnubst.com
Email: kimberlvdflsheilswinnubst.com

ATTORNEYS FOR PLAINTIFF

CERTIFICATE OF SERVICE

hereby certify that a true and correct copy of the above and foregoing
I

Objections t0 Defendant’s Response t0 Plaintiff’s Motion for Partial Summary

Judgment was served upon counsel for Defendant, James B. Carroll, Via electronic
service and email 0n this 29th day of June, 201 8.

/s/ Latrice E. Andrews

Lattice E. Andrews

PLAINTIFF'S OBJECTIONS TO DEFENDANT’S RESPONSE

TO ITS MOTION FOR PARTIAL SUMMARY JUDGMENT Page 17