Larry Lott D/B/A Larry Lott Interiors v. Chaley McCain

Case Information

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NoReply@MyFax.com Thursday, February 26, 2015 6:30 PM Dee Successful transmission to 19035813701. Re: McCain V. Lott; Discovery Responses 12th COURT OF APPEALS TYLER, TEXAS 12/23/2015 11:28:20 PM FAN ESTES Dear Amy, $◻$

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To: vmetcal@tyler.net, 19035813701@myfax.com From: den@amydfong.com Sent: Thu Feb, 262015 5:54 pm Case Link: McCain v. Lott Mr. Metcalf

Attached you will find: 1) Defendant's Response to Request for Admissions, 2) Defendant's Answers to First Set of Interrogatories, and 3) Defendant's Answers to Request for Production. I will have the Response to Request for Disclosure to you tomorrow. I apologize overlooking it since it was within the body ofyour petition rather than attached like the rest of the discovery requests.

I had called and lell a message with your office when you were out of state in trial. It has come to our attention Judge Skeen is related within the third degree of affinity to the Plaintiff. Please give me a call to discuss the best way to handle that matter.

I would like to take your client's oral deposition in the very near future. Please let me know some dates on which Mrs. McCain and you will be available.

Thank you,

Amy D. Long Attomey &; Counselor at Law 100 E. Ferguson, Suite 610 First Place - Regions Bank Bldg. Tyler, Texas 75702 903-592-1641 telephone 903-592-8043 feximile

This E-mail contains legally privileged and/or confidential information. Any use, dissemination, distribution or reproduction of this message or its attachments, if any, by anyone except the intended recipient(s) is strictly prohibited. If you received this communication in error, please notify the sender immediately by telephone or reply e-mail and delete this message from your system.

| Filename | | | :-- | :-- | | McCainVLottDA21stIrrogs.pdf | Case: McCain v. Lott | | McCainVLottDR2R4A.pdf | Case: McCain v. Lott | | McCainVLottDR2R4P.pdf | Case: McCain v. Lott |

CHALEY MCCAIN

IN THE DISTRICT COURT

VS.

LARRY S. LOTT D/B/A LARRY LOTT INTERIORS

241 ${}^{\text{ST}}$ JUDICIAL DISTRICT
SMITH COUNTY, TEXAS

DEFENDANT'S ANSWERS TO FIRST SET OF INTERROGATORIES

TO: Chaley McCain, by and through her attorney of record, Vance L. Metcalf, Kent, Anderson, Bush, Frost &; Metcalf, P.C., 1121 ESE Loop 323, Suite 200, Tyler Texas 75701

Pursuant to the Texas Rules of Civil Procedure, Defendant provides the following Answers to First Set of Interrogatories.

INTERROGATORY NO. 1: If you deny Request for Admission No. 1, state the factual and legal basis for said denial. ANSWER: Defendant denies Request for Admission No. 1 because the Plaintiff and Defendant never entered into a valid enforceable agreement. There is no written contract between Plaintiff and Defendant. There was never an offer acceptance in strict compliance with the terms of the offer or a "meeting of the minds" as to material provisions of any agreement between Plaintiff and Defendant. There was no agreement where both parties consented to terms and there was no consideration for any agreement, or if there was consideration, it failed in whole or part. Three was never any execution or delivery of any contract with the intent that it was mutual and binding upon Plaintiff and Defendant.

Alternatively, and if there was some sort of agreement, which Defendant denies, then all conditions precedent have not occurred. Plaintiff failed to give notice of claim as required. Further any agreement or contract alleged by Plaintiff is illegal and/or void against public policy and enforcement would be unconscionable. Any alleged agreement between Plaintiff and Defendant was the product of duress, or mistake of fact. If there was an agreement, it was discharged by accord and satisfaction and/or was modified. If there was an agreement Defendant alleges Plaintiff failed to mitigate damages and failed to perform the agreement. Defendant is entitled to offsets.

INTERROGATORY NO. 2: For each payment made to you by Ms. Kay Bracken during 2013 and 2014, state the date the payment was received and the amount of the payment.

ANSWER: Defendant objects to Interrogatory Number 2 for the reason such information is a protected trade secret under Texas Rule of Evidence 507. See Affidavit of Larry Lott attached as Exhibit "A". Further, the Defendant objects to the extent the burden or expense of the proposed discovery outweighs it's likely benefit, taking into account the needs of the case, amount in controversy, the parties' resources, the importance of the issues at state in the litigation, and the importance of the proposed discovery in resolving the issues. TRCP 192.4(b). Further the interrogatory subjects Petitioner and his client to an invasion of personal, constitutional or property rights. TRCP 192.6(b). The interrogatory seeks discovery of information that is not relevant to the subject matter of the lawsuit and is not reasonably calculated to lead to the discovery of admissible evidence. TRCP 192.3(a). Objection is made to this interrogatory to the extent the discovery is obtainable from some other source that is more convenient, less burdensome, or less expensive. TRCP 192.4(a).

INTERROGATORY NO. 3:

For each payment made by you to Plaintiff Chaley McCain during 2013 and 2014, state the date the payment was made and the amount of the payment.

ANSWER: Defendant objects to Interrogatory Number 3 because the discovery has already been provided to Plaintiff and is therefore unreasonably cumulative or duplicative and is obtainable from some other sources that is more convenient, less burdensome or less expensive. TRCP 192.4(a). Interrogatory Number 3 subjects Defendant to undue burden, unnecessary expense, harassment or annoyance. TRCP 192.6(b).

INTERROGATORY NO. 4: State the terms and conditions of any written or oral agreement you had with the Plaintiff, Chaley McCain, related to work you performed by you for Ms. Kay Bracken.

ANSWER: None. There was never a written agreement or any "meeting of the minds" as to terms and conditions related to any oral agreement related to any work performed by Defendant for Ms. Kay Bracken.

INTERROGATORY NO. 5: State the dollar amount of money you contend is owed, if any, by you to Ms. Chaley McCain at the present time and the method used to calculate said amount.

ANSWER: $\$0.00$ . There is no method used to calculate any amount owed because there was no contract between Plaintiff and Defendant written or otherwise.

INTERROGATORY NO. 6: If you contend that you do not currently owe any money to Chaley McCain, state the legal and factual basis for your contention.

ANSWER: No contract exists written or otherwise for Defendant to owe Plaintiff anything.

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing has been placed in the United States mail, postage prepaid, to

Vance L. Metcalf Kent, Anderson, Bush, Frost &; Metcalf, P.C. 1121 ESE Loop 323, Suite 200 Tyler Texas 75701 on this day of February 2015.

VERIFICATION

STATE OF TEXAS COUNTY OF SMITH $\S$ BEFORE ME, the undersigned authority, on this day personally appeared LARRY S. LOTT, who, after being duly sworn on his oath deposed and stated that his name is LARRY S. LOTT and he is Defendant in the above entitled and numbered cause, that he has read the above and foregoing and that the statements contained therein are within his personal knowledge and are true and correct.

Further Affiant sayeth not.

SUBSCRIBED AND SWORN TO BEFORE ME by LARRY S. LOTT on the day of February 2015 to certify which witness my hand and official seat.

Notiry Public, in and for The State of Texas

CHALEY MCCAIN

VS.

LARRY S. LOTT D/B/A LARRY LOTT INTERIORS

IN THE DISTRICT COURT ${241}^{\text{ST}}$ JUDICIAL DISTRICT SMITH COUNTY, TEXAS

DEFENDANT'S RESPONSE TO REQUEST FOR ADMISSIONS

TO: Chaley McCain, by and through her attorney of record, Vance L. Metcalf, Kent, Anderson, Bush, Frost &; Metcalf, P.C., 1121 ESE Loop 323, Suite 200, Tyler Texas 75701

Pursuant to the Texas Rules of Civil Procedure, Defendant provides the following Responses to Request for Admissions:

REQUEST FOR ADMISSION NO. 1: Admit that you entered into a valid and enforceable agreement with Plaintiff Chaley McCain whereby you agreed to pay her $10\%$ of all amounts you billed Ms. Kay Bracken for the furnishing and renovation of Ms. Bracken's properties.

RESPONSE: Deny. REQUEST FOR ADMISSION NO. 2: Admit that you billed Ms. Bracken a total of $\$6,200,000.00$ for the furnishing and renovation of her properties.

RESPONSE: Deny. REQUEST FOR ADMISSION NO. 3: Admit that you owed Plaintiff Chaley McCain a total of $\$620,000.00$ under the agreement referenced in Request for Admission No. 1.

RESPONSE: Deny. REQUEST FOR ADMISSION NO. 4: Admit that you did not fully comply with your obligations to Ms. McCain under the agreement referenced in Request for Admission No. 1

RESPONSE: Deny.

REQUEST FOR ADMISSION NO. 5: Admit that, as a result of your breach, you owe Ms. McCain $\$294,748.95$ and that said amount is due and owing at this time.

RESPONSE: Deny. REQUEST FOR ADMISSION NO. 6: Admit that the Plaintiff Chaley McCain, referred Kay Bracken to you. RESPONSE: Admit.

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing has been placed in the United States mail, postage prepaid, to

Vance L. Metcalf Kent, Anderson, Bush, Frost &; Metcalf, P.C. 1121 ESE Loop 323, Suite 200 Tyler Texas 75701

CHALEY MCCAIN

IN THE DISTRICT COURT

VS. LARRY S. LOTT D/B/A LARRY LOTT INTERIORS

241 ${}^{\text{ST}}$ JUDICIAL DISTRICT SMITH COUNTY, TEXAS

DEFENDANT'S ANSWERS TO REQUEST FOR PRODUCTION

TO: Chaley McCain, by and through her attorney of record, Vance L. Metcalf, Kent, Anderson, Bush, Frost &; Metcalf, P.C., 1121 ESE Loop 323, Suite 200, Tyler Texas 75701

Pursuant to the Texas Rules of Civil Procedure, Defendant provides the following Answers to Request for Production.

REQUEST FOR PRODUCTION NO. 1: Produce all invoices, billing statements, receipts and other documents reflecting amounts you billed and/or collected from Ms. Kay Bracken related to furnishing or renovation work you performed at her properties.

ANSWER: Defendant objects to the production of such documents, and documents have been withheld pursuant to Trade Secret Privilege. TRE 507.

REQUEST FOR PRODUCTION NO. 2: Produce all written agreements between you and Kay Bracken. ANSWER: Defendant objects to the production of such documents, and documents have been withheld pursuant to Trade Secret Privilege. TRE 507.

REQUEST FOR PRODUCTION NO. 3: Produce all checks and other documents evidencing payments you made to Ms. Chaley McCain during 2013 and 2014.

ANSWER: Defendant objects to production of these documents because they are duplicative of other requests, already in Plaintiff's possession, and therefore subjects Defendant to undue burden and expense and is propounded for the purpose of harassment. The information and documents have previously been provided to Plaintiff and the information therefore is easily obtainable from another source and in a less expensive and harassing manner.

REQUEST FOR PRODUCTION NO. 4:

Produce all emails, text messages, letters and other correspondence between you and Chaley McCain related to this lawsuit.

ANSWER: Objection is made to the extent the Request for Production Number 4 requires production of "all" emails, text messages, letters and other correspondence between Defendant and Plaintiff related to this lawsuit because as a matter of course some text messages may have rolled off Defendant's telephone. Further, Defendant has changed telephones, and some of the text messages which would be responsive may not be available to Defendant. Subject to such objection, Defendant produces the attached 25 pages which are screen shots of the text messages Defendant has been able to access from his former cell phone. Defendant is not aware of any emails, letters or other correspondence between Plaintiff and Defendant, but will timely supplement if any other responsive documents become available to Defendant.

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing has been placed in the United States mail, postage prepaid, to

Vance L. Metcalf Kent, Anderson, Bush, Frost &; Metcalf, P.C. 1121 ESE Loop 323, Suite 200 Tyler Texas 75701 on this? day of February 2015.

Affidavit of Larry Lott in Support of Discovery Objections

STATE OF TEXAS
$\S$
COUNTY OF SMITH

$\S$ Defendant, Larry Lott, appeared before me today and stated under oath: "My name is Larry Lott. I am above the age of eighteen years, and I am fully competent to make this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct.

I am the owner and operator of Larry Lott Interiors, a home furnishings and design service business located in Tyler, Texas since 2009. I have been in the home interiors and design business in Tyler over ten years. Before opening my own store, I had been in the home interior and design business in Texas since 1997.

I have built my client list and vendor list over many years and with great care and at great expense. My business is largely about personal relationships with my vendors and my clients. I am in the homes of my customers and very involved in designing and customizing their most personal spaces in their homes and inner sanctum. My clients expect certain measures of their privacy will be protected by me and by my vendors and contractors working in my clients' homes. This privacy (including their financial information) is a very integral part of my services to my clients and is kept in the strictest of confidences.

Chaley McCain, a realtor and an acquaintance of mine, has sued me and my business on a breach of contract theory. There is no written contract of any type between

Mrs. McCain and myself and there never has been a written contract of any type between Plaintiff and me or my business.

In discovery as a part of her suit, Chaley McCain is requesting I produce protected client and vendor trade secret information. Specifically, Mrs. McCain is requesting the following documents which constitute protected trade secret information:

1. all invoices, billing statements, receipts and other documents reflecting amounts you billed and/or collected from Ms.

Kay Bracken related to furnishing or renovation work you performed at her properties. 2. all written agreements between you and Kay Bracken

The documents requested above contain trade secrets and private client information. The vendor information I have developed at great expense and over a number of years. That information includes but is not limited to the name, identity, location and pricing of my vendors, materials sources, contractors, subcontractors, along with my personal pricing strategies and design strategies.

Chaley McCain has not shown by any evidence (other than her bare assertion) there was ever any contract between Plaintiff, Chaley McCain and myself or my business. Chaley McCain has not shown that the information she is requesting is material or necessary for a fair adjudication of her claim.

Furthermore, not disclosing my trade secrets will not tend to conceal fraud or otherwise work an injustice. The information contained in the documents requested by Chaley McCain are my protected trade secrets in the home interior design business and

have been developed by me over many years. The information contained in the documents Plaintiff requests is not known to others outside of my business and is known only by key employees of mine which were involved on the Bracken project or involved in my book-keeping operations. I have spent years of time, effort and money developing my specialized vendor list and special pricing agreements with vendors and contractors. The information I have which are my trade secrets would take others years of time, toil and money to duplicate or acquire. I have taken great pains to protect my information and documentation related to my clients and my vendors because disclosure of such information would undermine my clients' trust in me and reveal personal and financial information about my clients and my vendors. Disclosure of such information to my competitors would give them an unfair advantage and be extremely valuable to my competitors.

I have taken great measures to guard the valuable trade secret information which Plaintiff has requested including having employees and contractors used by my design business to sign non-disclosure agreements, the locking of the information in a client file and in vendor files, and segregating the information from the eyes of non-key employees, competitors and the public. I have special security systems installed in my building to safeguard my business and trade secrets. The information requested by Plaintiff is very valuable to my business and if revealed to my competitors would be very valuable to them and enable them an unfair competitive advantage.

The information requested by Plaintiff does not in any way relate to any contract or agreement Plaintiff alleges may have existed between Plaintiff and me or my business, Larry Lott Interiors.

SIGNED under oath before me on $$ 2015.

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Case Details

Case Name: Larry Lott D/B/A Larry Lott Interiors v. Chaley McCain

Court Name: Court of Appeals of Texas

Date Published: Dec 23, 2015

Docket Number: 12-15-00244-CV

Court Abbreviation: Tex. App.