Transcript of DuPuy hearing

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REPORTER'S RECORD VOLUME 1 OF 1 VOLUMES TRIAL COURT CAUSE NO. 09CV1183 MR. MARGARITA, L.P. vs. DUPUY & ASSOCIATES, ET AL ) IN THE DISTRICT COURT ) ) GALVESTON COUNTY, TEXAS ) ) 405TH JUDICIAL DISTRICT

_____________________________________________ HEARING ON MOTIONS _____________________________________________

On the 26th day of January, 2012, the following proceedings came on to be held in the above-titled and numbered cause before the Honorable Elizabeth Ray, Judge Presiding, held in Galveston, Galveston County, Texas. Proceedings reported by computerized stenotype machine.

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APPEARANCES Mr. David Bryant SBOT No. 00785730 Ms. Jessica Juren SBOT No. 24058577 5020 Montrose Blvd., 7th Floor Houston, Texas 77006 Telephone: 832-487-0880 Attorney for Plaintiff

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1 2 3 4 5 6 Greg Hughes By Mr. Bryant January 26, 2012

VOLUME 1 HEARING ON MOTIONS

PAGE VOL. Direct 14 v1 Cross V.Dire 1

Reporter's Certificate ........................... 25 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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INDEX OF EXHIBITS Use is indicated as follows: R - Record Only D - Demonstrative DESCRIPTION OFFERED ADMITTED USE 8 v1 8 v1 R

Register of Actions, Case No. 09-CV-1183 Defendant's Notice Order Setting Deposition and Rule 11 Agreement Emergency Motion to Stay Proceedings Pending Mandamus Letter from Kathleen Collins Letter from David Bryant Relevant Timeline Second Motion to Recuse and Disqualify Judge Shearn Smith Order Denying Defendant's Requestion for a Stay of Proceedings Memorandum Opinion Petition for Writ of Mandamus

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January 26, 2012 THE COURT: This is Cause No. 09CV1183,

Mr. Margarita L.P. Vs. Dupuy & Associates, and this is on a Motion to Recuse and Motion for Sanctions. So

would you please announce who is here and who is not. MR. BRYANT: Thank you, Your Honor. My

name is David Bryant, and I'm here on behalf of the plaintiff, Mr. Margarita. I have Jessica Juren here who We are present.

is also an attorney with my office. The defendant and the movant is not. THE COURT: courtroom witnesses or -MR. BRYANT: here in Galveston.

And are the people in the

Greg Hughes is an attorney

I might ask him a couple questions. I

But Julie Hatcher is also an attorney here in town. don't think -- she is just here to listen, I think. THE COURT: Well, you may or may not

know -- I don't know if you do or not -- but apparently the court received a letter today from Rachel Morales saying that the office is withdrawing and passing the hearing. Well, of course, they cannot pass the hearing.

The hearing is set as a result of the Motion to Recuse and it's set by the court. That's not an option. The

withdrawal, of course, is not in front of me because that would be, depending on the ruling on the Motion to

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Recuse, that would be in front of the regular judge. I can't rule on that. For the record purposes, the Motion to

So

Pass the Hearing is denied, and that puts the Motion to Recuse -- what I believe to be the Second Motion to Recuse -- although I believe they filed it as an Amended Motion to Recuse -- that puts that at play; and since there is no one here to promote that motion, that motion is hereby denied. That leaves, I believe, in front of me your Motion for Sanctions. MR. BRYANT: THE COURT: how I just proceeded? MR. BRYANT: THE COURT: Not at all. Because of the fact the other Yes, Judge. Do you have any objection to

side is not here, there is no lodged objection to the way that I have proceeded, so we will now take up your Motion for Sanctions. MR. BRYANT: Thank you very much, Judge.

I don't know if the court reporter has a few exhibit stickers? If the court doesn't mind, I will I didn't know how it was going

hand number my exhibits. to go today.

What I have done, Your Honor, is I have

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pulled from the record a few documents that I think exemplify the sort of conduct that we have been dealing with in this case from Day One. I have here as

Exhibit 1 that I'd offer into evidence, and Exhibit 1 is basically a printout -- may I approach, Your Honor? THE COURT: MR. BRYANT: Exhibit 1. Sure. I will tender to the court

That is a printout from the records of this

case from the publicly available docket sheet indicating the various documents that have been filed, motions, et cetera. And I've highlighted for the court's

information some various items indicative of the delay tactics and frivolity of the defendant's motions and the things that they have tried to do for the sole purpose of avoiding a single deposition. I have been attempting, Judge -- as I know you know because you read the whole file -- I have been trying to get a deposition of our defendant, a lawyer and now sitting judge in this county, for over eight months and every time I attempt to get that deposition, whether it's by court order, agreement or otherwise, I am met with something else. I'm met with a Motion to Quash. I'm met with a, quote, "notice." I'll mark this as Exhibit 2. a -- I'll offer Exhibit 1, Your Honor. There was

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 documents.

THE COURT: MR. BRYANT:

Exhibit 1 is admitted. Exhibit 2, Your Honor, is a

document that was filed by the defendants on August the 29th on the eve of the deposition that was ordered in this case for September the 1st of 2011. It says,

"Defendant's notice that plaintiff's pleadings are stricken per court order and notice that dismissal is now purely ministerial." This document was filed

because the defendant had a dispute about whether my pleadings had been amended properly in response to a special exceptions. That document was filed. I got a

letter on a fax saying that they are not going to appear at the deposition, so we come back to court. I'll mark Exhibit 3. offer Exhibit 2, Your Honor. THE COURT: MR. BRYANT: Exhibit 2 is admitted. Exhibit 3 is actually two Exhibit 3 -- I would

The first page is the order setting the This was a hearing

deposition of Christopher Dupuy.

held on September the 16th, 2011, as a result of the failure to appear for his deposition the second time, wherein the court orders that the deposition of Christopher Dupuy is to take place on the 6th of October, 2011, at 10:00 a.m. And then we have a Rule 11

agreement where the defendant agreed to pay $1,830 for

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attorney's fees and expenses in preparing the Motion for Deposition and Motion to Compel as a result of the defendant's failure to appear for two depositions ordered by the court. I would offer Exhibit 3. THE COURT: MR. BRYANT: Exhibit 3 is admitted. That document clearly

indicates, Your Honor, that the court for the second time has ordered a deposition -- actually, the third time -- second time, excuse me, has ordered the deposition of the defendant; and on the morning of or the afternoon before -- the morning of the October the 6th deposition, I get Exhibit 4 which is an Emergency Motion to Stay Proceedings Pending Mandamus. And I'd offer Exhibit 4. THE COURT: MR. BRYANT: Exhibit 4 is admitted. I also received at the same

time, Judge -- I think I probably have it here -- there is a letter from Ms. Collins, who is the counsel for the defendant, and in that letter she indicates that her client will not be appearing at the deposition because of the fact that they have filed -- here we go. exhibit -- well, I'll just show the court this. need to make it an exhibit, we will. This is If we

It's actually part

of a larger set of exhibits that I had for my Motion to

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Compel, etc. And in this letter she indicates that her client is being released to serve the citizens of Galveston County and, in other words, she is not going to have her client appear for the deposition that was clearly ordered by the court because she believes that the mandamus stays the proceeding. It clearly did not.

I sent her back a letter saying that that's going to be a problem. And I'm going to go I

ahead, and if we could, just get a copy of this.

apologize, Judge, for having this out of order, but I'm going to say this is Exhibit 5 and the next letter is Exhibit 6. And we will make a copy of this, if we I will tender it to the court and I will

could, Judge.

offer it into evidence pending a copy, if we can do that. THE COURT: MR. BRYANT: I just showed you. THE COURT: MR. BRYANT: Okay. If we go to the next page, Sure. Exhibit 5. That's the letter

Exhibit 6, this is the letter that I sent back to Ms. Collins explaining to her that her mandamus application did not stay the proceedings, that I intend to seek sanctions. And at the very end you notice I say

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