Opinion
8:20-cv-304
10-08-2024
THE ROCK PLACE II, INC., Plaintiff, v. SANITARY AND IMPROVEMENT DISTRICT NO. 596, Defendant,
THE ROCK PLACE II, INC., Plaintiff Jason M. Bruno, NE #23062 Robert S. Sherrets, NE #24791 SHERRETS BRUNO & VOGT LLC ATTORNEYS FOR PLAINTIFF
THE ROCK PLACE II, INC., Plaintiff Jason M. Bruno, NE #23062 Robert S. Sherrets, NE #24791 SHERRETS BRUNO & VOGT LLC ATTORNEYS FOR PLAINTIFF
PLAINTIFF'S VERIFIED POSITION STATEMENT REGARDING DISPUTE OVER SECOND AMENDED 30(b)(6) DEPOSITION TOPICS AND RECORDS REQUEST
Plaintiff the Rock Place II, Inc. (“RP II”) submits its position statement pertaining to the Second Amended Notice of Deposition Duces Tecum Served upon it by Defendant Sanitary and Improvement District No. 596 (“SID 596”) on October 2, 2024 (“the Notice”). This is an inverse condemnation case stemming from SID 596's acquisition of certain property rights to build a commercial property in Elkhorn, Nebraska. Non-party, THG Development, LLC (“THG”), owned the property. RP II held a leasehold interest where it operated the Rock Place landscape and supply business.
The Notice seeks to restart discovery at this late stage and would impose an unfair, unreasonable, and disproportional burden on RP II. The thirty-three (33) deposition topics and seventeen (17) document requests are facially overly broad and seek irrelevant information, including on topics already excluded by this Court.
I. THE DOCUMENT REQUESTS ARE UNTIMELY AND WOULD CONSTITUTE AN UNNECESSARY AND UNREASONABLE BURDEN UPON RP II.
This Court should not require RP II to respond to any of the document requests accompanying the Notice for many reasons. First, the requests are untimely. This case was filed on July 30, 2020 and the deadline for written discovery expired in 2022 at the latest.
The request for production does not comply with Rule 34(b)(2)(A). The Notice was served on October 2, 2024 for a deposition to be held on October 11, 2024.
RP II is not aware of any attempt or request by SID 596 to extend the written discovery deadline. This Court's previous Order makes clear that no extension of the written discovery deadline will be granted unless requested and upon a showing of good cause:
All requests for changes of deadlines or settings established herein shall be directed to the undersigned magistrate judge, including all requests for changes of trial dates. Such requests will not be considered absent a showing of due diligence in the timely progression of this case and the recent development of circumstances, unanticipated prior to the filing of the motion, which require that additional time be allowed.(Doc. 152, ¶ 5).
There are no recent developments or unanticipated circumstances to justify RP II being relegated to another round of excessive discovery requests. RP II never agreed to extend the written discovery deadline, only to extend the deadline to depose RP II's the parties' respective experts.
This case has been heavily litigated through extensive motion practice. This Court noted SID 596's “unnecessary and meritless motion practice” back in 2022:
The Court concludes the motions filed by the parties in this case have no merit. Given this is Defendants' third motion for summary judgment, the Court questions whether this continued unnecessary and meritless motion practice constitutes an inappropriate effort to delay this case. The Court has now written no less than 71 pages of opinions in this case in less than five orders, including the present order.(Doc. 148, Pg. 1).
SID 596's multiple summary judgment motions came after extensive and costly discovery in this case and three related ones in the Douglas County District Court at ¶ 19-2434, CI 20-5750, and CI 20-5958. One of the related cases was tried to a jury and two were appealed to the Nebraska Supreme Court.
In this case, RP II served its Initial Disclosure Statement on March 25, 2021, with 1,758 bate stamped documents. (Ex. A). In this case, SID 596 served 13 Requests for Production on December 15, 2021. RP II responded to the Requests for Production on February 15, 2022 and produced another 4,866 bate stamped documents for a total of 6,624 in this case alone. (Ex. B). In this case, SID 596 served 9 Interrogatories on December 15, 2021, to which RP II responded on February 15, 2022. (Ex. C). In other cases, SID 596 served another 33 Interrogatories and 40 Requests for Production. Mr. Scaglione deposed Mr. Haffke in a related case on November 13, 2019 from 9:06 a.m. to 2:57 p.m.
There could be nothing material or new to be gained by further written discovery. The underlying issues have been exhaustively covered in numerous depositions, hearings, motion practice, and trial in 4 total cases and two appeals. Forcing RP II to respond to more discovery would constitute an unnecessary and unfair burden and allow SID 596 to circumvent the progression deadlines and RP II's objections to previous discovery requests that were never challenged or challenged unsuccessfully by SID 596. There is no assertion RP II has failed to comply with its mandatory disclosure requirements or did not fully and appropriately respond to SID 596's discovery requests.
SID 596 should also have the same access to the information requested in its recent requests. As SID 596's counsel confirmed in a January 5, 2023 email, “You may have already produced the requested documents, so it may just be a matter of finding the bates stamp numbers to the requested documents.” (Ex. D). SID 596 can go through the documents in its possession, and already produced by RP II, and locate the ones it wishes to utilize for the deposition. This burden should not be shifted to RP II, especially since RP II does not know what information or records SID 596 wishes to utilize to conduct the deposition.
SID 596 has not furnished any evidence satisfying the proportionality considerations of FRCP 26:
Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.FRCP 26(b)(1).
On the other hand, the evidence establishes that complying with the new requests would place an unnecessary and disproportionate burden upon RP II and its counsel. It took approximately 38.3 hours at a cost of $10,315.89 for RP II's counsel to make disclosures and respond to SID 596's discovery requests in this case. It took approximately 57.78 hours at a cost of $16,172.27 for RP II's counsel to respond to SID 596's discovery requests in the related cases.
RP II's counsel anticipates it will require more than 50 hours and more than $20,000 in time and possibly more to respond to the new requests. This does not include the time and burden it would impose on RP II, including to investigate what has already been produced and whether any additional information exists or remains in its possession. Complying with SID 596's requests would prevent RP
II from being able to adequately prepare for the deposition. Further adding to the costs and burden are the facts that the Rock Place business and the property it was on were sold in 2022 and Mr. Haffke has moved to Mexico.
RP II further objects to many of the topics because, among other things, they seek irrelevant information, are overly broad and unduly burdensome, and/or solicit information pertaining to arguments previously rejected by this Court. As a few examples, SID 596 seeks information related to payments received by THG in the state condemnation case. This Court rejected these arguments three times:
Lacking any further arguments on this point, SID 596 falls back on its old standby: that the “undivided fee rule” prevents Rock Place from having a separate claim for the condemnation. Filing 147 at 15. The Court has addressed this argument twice before and, for the reasons expressed in its past orders, rejects this argument.5 Filing 44; Filing 100. SID 596's continual resurrection of this argument prompts the Court to question SID 596's strategy, where there are other arguments at its disposal, such as equitable estoppel if Rock Place indeed intentionally hid its tenancy, that for unknown reasons SID 596 does not raise. The “undivided fee” argument SID 596 presents in support of its summary judgment motion is meritless. Therefore, the Court denies SID 596's Motion for Summary Judgment.(Doc. 148, Pg. 12-13).
SID 596 further seeks information to support its argument that RP II knew about the state condemnation against THG, but failed to intervene. This Court has already deemed SID 596's argument to be meritless. See e.g. Doc. 148, Pg. 11:
Thus, SID 596's vigorous arguments that Rock Place had notice of SID 596's eminent domain proceedings are beside the point. “[SID 596] had the right to decide whose interest it would condemn.” Willie Arp Farms, 739 N.W.2d at 783. When SID 596 failed to join Rock
Place in the eminent domain proceedings, “[Rock Place] remained the ‘owner' and ‘possessor' of whatever interest it had in the land at issue.” Id. Therefore, the Court rejects SID 596's argument that Rock Place's failure to intervene precludes it from maintaining an inverse condemnation action.
As the Notice facially conveys, SID 596 further requests extensive information and records pertaining to THG and the sale of the property. Such requests are not relevant. This Court has already determined that THG and RP II's claims are not one in the same.
The parties further stipulated to February 14, 2019 as the date of valuation, making many of SID 596's requests overly broad by 5½ years since they seek information and records to date. (Doc. 158). This Court should enforce the progression deadlines, stand by its previous orders affirming that the condemnation filed against THG does not impact or eliminate RP II's ability to bring this inverse condemnation claim, and deny SID 596's attempts to restart discovery.
II. RP II HAS TIMELY AND CONTINUOUSLY ASSERTED ITS OBJECTIONS TO THE SUBPOENA.
RP II has not waived its objections to the subpoena. To “establish a waiver of a legal right, there must be a clear, unequivocal, and decisive act of a party showing such a purpose, or acts amounting to an estoppel on his or her part.” Affiliated Foods Midwest Coop., Inc. v. Supervalu Inc., No. 8:16CV465, 2017 WL 2345575, at *3 (D. Neb. May 30, 2017), objections overruled, No. 8:16CV465, 2017 WL 3311215 (D. Neb. Aug. 3, 2017), mandamus granted, order vacated sub nom. In re Borowiak IGA Foodliner, Inc., 879 F.3d 848 (8th Cir. 2018).
The record shows RP II consistently, timely, and vehemently objected to the notices of its deposition. SID 596 served a Notice of Deposition on January 10, 2023. SID served an Amended Notice of Deposition on January 13, 2023. (Ex. E). On the same day, RP II timely filed detailed Objections to the Amended Notice of Deposition. (Doc. 159). RP II submitted its position statement to the Court on January 20, 2023 regarding its objections. (Ex. F).
RP II never withdrew or abandoned its objections. Instead, when SID 596 served its Second Amended Notice of Deposition on October 2, 2024 (Doc. 192), RP II promptly filed Objections to the Second Amended Notice of Deposition on the same day. (Doc. 193). By Rule, RP II had until the beginning of the deposition to preserve its objections:
(2) Objections. An objection at the time of the examination-whether to evidence, to a party's conduct, to the officer's qualifications, to the manner of taking the deposition, or to any other aspect of the deposition-must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).FRCP 34(c)(2).
If anyone waived its positions regarding the deposition it was SID 596 who failed to obtain a ruling on RP II's objections, failed to file a motion to compel the FRCP 34 records request prior to the expiration of the deadline, and set a deposition without issuing an amended notice containing a request for records.
III. THERE WAS NO AGREEMENT FOR RP II TO WITHDRAW ITS OBJECTIONS TO THE NOTICE.
SID 596 contends there was some agreement by counsel regarding the scope of the Notice and RP II's objections. There was not. The claim of an oral agreement is expressly prohibited by Local Rules 7.3 and 29.1 which respectively read:
An agreement, stipulation or consent between parties is binding only if (a) in writing and signed by the parties or their attorneys, or if oral, made a part of the record and (b) approved by an appropriate court order or ruling if required. For provisions on multiple signatures on electronically filed documents, see Nebraska Civil Rule 11.1(a)(3). For discovery stipulations, see Nebraska Civil Rule 29.1. The attorney who electronically files a joint stipulation must file a certificate of service.Local Rule 7.3
Discovery Stipulations. If stipulations to extend the time stated in Federal Rules of Civil Procedure 33, 34, and 36 for responses to discovery would interfere with court-imposed discovery deadlines, motion deadlines, or trial dates, the stipulations are effective only upon court order. All other discovery stipulations are effective when the parties file a written stipulation signed by all parties that specifies the agreed upon change.Local Rule 29.1.
There was no written agreement, stipulation, or consent signed by the parties or approved by this Court wherein RP II withdrew its extensive objections to the Notice. There is also no written stipulation signed by the parties agreeing to extend the Rule 34 deadline or one approved by this Court. There is also nothing in the court filings or undersigned counsel's files showing the Court overruled any of RP II's objections to the Notice.
While Local Rule 7.3 was plainly not satisfied, RP II has been unable to locate any evidence of an agreement to withdraw its objections to the Notice. Despite request, SID 596 has failed to produce any emails or other correspondence discussing the issue, establishing RP II agreed to withdraw any of its objections, or what the terms of the alleged agreement were. RP II believes that SID 596 is confusing the Notice with the agreement and stipulation the parties reached to stay the case. (Doc. 164).
There was no agreement. RP II has specifically and continuously objected to the Notice. It is not reasonable to suggest RP II's counsel simply orally agreed to withdraw all of its objections. RP II's counsel crafted detailed objections to the Notice for many valid reasons, including because they are unduly burdensome, the written discovery deadline passed, and RP II and its counsel spent significant time making disclosures and responding to discovery in this case and three related ones.
CONCLUSION
The document request accompanying the Notice should be quashed in full and the topic list should be paired down to ones that are relevant to Plaintiff and its claims in this case.
VERIFICATION
I, Jason M. Bruno, hereby certify under the penalty of perjury that the foregoing is true and correct to the best of my knowledge and belief.
Dated October 7, 2024, Jason M. Bruno
EXHIBIT A
PLAINTIFF'S INITIAL MANDATORY DISCLOSURES
COMES NOW the Plaintiff and pursuant to Fed. Civ. P. 26(a) hereby make the following disclosures:
I. Disclosures of the name and, if known, the address and telephone number of each individual likely to have discoverable information-along with the subjects of that information- that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment:
a. The Rock Place II, Inc., c/o Sherrets Bruno & Vogt LLC
260 Regency Parkway Drive, Suite 200
Omaha, Nebraska 68114 402-390-1112
Plaintiff in this matter. Has knowledge of the property at issue, leasehold interests, the business run on the property, operations and revenues of the property, the impact and damages caused by the taking, communications with the Condemner and the City of Omaha, the lawsuit filed by the Defendants, and the malicious prosecution.
b. Woodsonia-204 Center, LLC
c/o KOLEY JESSEN P.C., LLO
1125 South 103 Street, Suite 800
Omaha, NE 68124
(402) 390-9500
Defendant in this matter. Has potential knowledge of allegations contained in the Amended Complaint and Answer to the Amended Complaint.
c. Jeff Elliot c/o KOLEY JESSEN P.C., LLO
1125 South 103 Street, Suite 800
Omaha, NE 68124
(402) 390-9500
Defendant in this matter. Has potential knowledge of allegations contained in the Amended Complaint and Answer to the Amended Complaint.
d. Andrew A. Snyder c/o KOLEY JESSEN P.C., LLO
1125 South 103 Street, Suite 800
Omaha, NE 68124
(402) 390-9500
Defendant in this matter. Has potential knowledge of allegations contained in the Amended Complaint and Answer to the Amended Complaint.
e. Tanya Mainelli c/o KOLEY JESSEN P.C., LLO
1125 South 103 Street, Suite 800
Omaha, NE 68124
(402) 390-9500
Defendant in this matter. Has potential knowledge of allegations contained in the Amended Complaint and Answer to the Amended Complaint.
f. Carson Stratman c/o KOLEY JESSEN P.C., LLO
1125 South 103 Street, Suite 800
Omaha, NE 68124
(402) 390-9500
Defendant in this matter. Has potential knowledge of allegations contained in the Amended Complaint and Answer to the Amended Complaint.
g. Sandi Hollingsworth c/o KOLEY JESSEN P.C., LLO
1125 South 103 Street, Suite 800
Omaha, NE 68124
(402) 390-9500
Defendant in this matter. Has potential knowledge of allegations contained in the Amended Complaint and Answer to the Amended Complaint.
h. SID 596
c/o KOLEY JESSEN P.C., LLO
1125 South 103 Street, Suite 800
Omaha, NE 68124
(402) 390-9500
Defendant in this matter. Has potential knowledge of allegations contained in the Amended Complaint and Answer to the Amended Complaint.
i. The City of Omaha
1819 Farnam Street
Omaha, Nebraska 68183 402-444-7000
The City of Omaha may have knowledge regarding the founding of SID 596 and the statements made to or from City agents, employees, or officials regarding the scope of SID 596 and the Defendants' intentions. Officials with the City of Omaha may also have knowledge, including but not limited to Robert Stubbe, Stephen Curtiss, David Fanslau, Mayor Jean Stothert, Brook Bench, the City Attorney's office, and members of the Omaha City Council and other boards.
j. West Center Village Association, Inc.
c/o KOLEY JESSEN P.C., LLO
1125 South 103 Street, Suite 800
Omaha, NE 68124
(402) 390-9500
A related entity to the Defendants in this case. May have knowledge of allegations contained in the Amended Complaint and Answer to the Amended Complaint.
k. THG Development, LLC
c/o Sherrets Bruno & Vogt LLC
260 Regency Parkway Drive, Suite 200
Omaha, Nebraska 68114 402-390-1112
Has knowledge of the operations and revenues of the property, the impact and damages caused by the taking, communications with the Condemner and the City of Omaha; and knowledge of the condemnation proceeding and special assessments suits brought by the Defendants.
Allegations in this case stem, in part, from issues surrounding the condemnation proceeding and lawsuits Plaintiffs allege the Defendants brought maliciously. As such, in an abundance of caution the Plaintiff has disclosed any and all documents in its possession related to the condemnation proceeding and the other suits brought in Douglas County District Court at ¶ 19-2434, CI 20-5750, CI 20-5958. Plaintiff has also disclosed individuals with knowledge regarding the facts at issue in those various suits. Plaintiff has not disclosed pleadings in those matters, as they are public records.
l. Michael D. Haffke c/o Sherrets Bruno & Vogt LLC
260 Regency Parkway Drive, Suite 200
Omaha, Nebraska 68114 402-390-1112
Member of THG Development, LLC. Has knowledge of the operations and revenues of the property, the impact and damages caused by the taking, and communications with the Condemner and the City of Omaha.
m. Timothy Snyder c/o Sherrets Bruno & Vogt LLC
260 Regency Parkway Drive, Suite 200
Omaha, Nebraska 68114 402-390-1112
Employee of THG Development, LLC. May have knowledge of the operations of the property, the impact and damages caused by the taking, and was present at some meetings with the City.
n. Tinkham Land Surveying, Inc.
9910 No. 48th Street, Suite 208
Omaha, Nebraska 68152-1548 402-451-2088
Surveyed the property. Has knowledge of the property, the survey, and the cost of the survey.
o. Rich Lincoln and other representatives
Scales Sales & Service, LLC
8615 Vernon Avenue
Omaha, Nebraska 68134
Has knowledge of the need to place new scale as a result of the taking and the cost of the scale.
p. Kevin Garbez and other representatives
American Fence Company
7722 F Street
Omaha, Nebraska 68127 531-329-4409
Has knowledge of the need to put gates in the fence, add new poles, replace portions of old fence, and add new fence as a result of the taking and the cost of the needed improvements.
q. Representatives of Valley Corporation
28001 Ida Circle
PO Box 589
Valley, Nebraska 68054 402-359-2578
Contractor. Has knowledge of impact of taking upon the property, the need for soil removal and asphalt lot construction and the cost of the required improvements needed to maintain operations.
r. Homero Ramirez and other representatives
Amanco Construction, LLC
2899 4606 Hamilton Street
Omaha, Nebraska 68132 402-378-6183
Has knowledge of the need to lay concrete to move bins required as a result of the taking and the cost of doing so.
s. Steven Thole and other representatives
Rock Solid Poured Walls, Inc.
22226 Brookcrest Drive
Elkhorn, Nebraska 68022 402-306-6353
Has knowledge of the need to pour walls for the rock bins required as a result of the taking and the cost of doing so.
t. Ronald Blue c/o Sherrets Bruno & Vogt LLC
260 Regency Parkway Drive, Suite 200
Omaha, Nebraska 68114 402-390-1112
Former employee/present contractor for THG Development, LLC. May have knowledge of the operations of the property and the impact and damages caused by the taking.
u. Ryan Haas
Employee of the City of Omaha Planning Department
1819 Farnam Street, Suite 1100
Omaha, Nebraska 68183
Had knowledge of the area and coordinated aligning of the roads for the development.
v. Rod Dahlquist and Tom Monaghan
1403 Farnam Street, Suite 232
Omaha, Nebraska 68102 402-884-7044
Prior counsel THG Development, LLC. Have knowledge of the proceedings and the discussions and actions of the Condemner.
w. Jack Liebentritt c/o Sherrets Bruno & Vogt LLC
260 Regency Parkway Drive, Suite 200
Omaha, Nebraska 68114 402-390-1112
Operations manager of the Rock Place. Has knowledge of the operations and revenues of the property, the impact and damages caused by the taking, and communications with the Condemner and Jeff Elliott.
x. Kevin Moline estimator from or other representatives of Linhart Construction
4949 S 66th Plaza
Omaha, NE 68117 402-339-6748
Linhart is expected to provide testimony expert in nature. Examined the wall, drawings, and specifications. Linhart is expected to testify that the wall was negligently designed and installed. Is expected to testify that the retaining wall needs to be torn down and properly rebuilt and the cost of doing so.
y. Justin Wulf
Wulf Enterprises
12752 County Road 15
Arlington, NE 68002
Provided a bid for tearing out matting, hauling in dirt, and re-grading the area for proper drainage.
z. Mark Jonas Trucking
24944 482nd Avenue
Garretson, S.D. 57030
Has knowledge of the numerous asphalt loads that took place March of 2019 to present and the cost of doing so.
aa. Evan Nekuda
Corner Stone Surveying, LLC
14225 Dayton Circle, Suite #15Omaha, Nebraska 68134
Surveyed the property. Has knowledge of the property, the survey, and the cost of the survey.
bb. Rock It Express Inc.
3405 Sought 204th Street
Elkhorn, Nebraska 68022
Has knowledge of asphalt hauling and the cost of doing so.
cc. A & S Concrete Recycling, Inc.
6002 North 89 Circle
Omaha, Nebraska 68134
Has knowledge of the numerous asphalt loads/grindings that took place March of 2019 to present and the cost of doing so.
dd. David Iske
Eastern Nebraska Builders
24617 West Center Road
Waterloo, Nebraska 68069
Knowledge of drive widening, pouring, storm drainage, and replacement and cost of the same.
ee. Dave Oster
Pro-Sign & Screen Printing
8704 Washington Circle
Omaha, Nebraska 68127
Provided a bid for signs now need to help direct traffic to proper areas of the property due to limited accessibility.
ff. Alex Pearson
Elkhorn Lawn Care
14983 Grover St
Omaha, NE 68144
Interested in purchasing the property/business. His knowledge is that he is aware of SID interference and slander of title.
gg. Evan Meester
President
Results Business Advisors
(402) 913-9080 Office
(402) 880-9054 Cell
Broker who has been attempting to sell property/business. Aware of damage caused by SID interference and slander of title.
hh. NLH Enterprises II, LLC
c/o Lori and Nick Heimann
6065 N 261st Cir.
Valley, NE 68064
The buyer of the property/business. Is aware of SID interference and slander of title.
II. Disclosures of copies-or a description by category and location-of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment:
Please see enclosed documents bates-labeled TRP000001-001758.
III. Disclosures of a computation of each category of damages claimed by the disclosing party-who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered:
Plaintiff is seeking past, present, and future general and special damages, pre- and postjudgment interest, punitive damages, and statutory damages in an amount to be determined at trial related to the loss of the leasehold interest the Plaintiff holds on the property in question. Plaintiff is also seeking attorney fees related to the alleged malicious prosecution in an amount to be proved at trial. Plaintiff also seeks attorney fees, appraisal fees, expert
fees, treble damages, and costs as may be allowed by law, including 18 U.S.C. §1964(c) and 42 U.S.C. § 1988.
IV. Disclosures of for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment:
To Plaintiff's knowledge, no insurance agreements meeting this criteria exist.
EXHIBIT B
PLAINTIFF'S RESPONSES TO DEFENDANTS' FIRST SET OF REQUESTS FOR PRODUCTION
REQUEST NO. 1. All Documents you sent to or received from any representative of Defendants regarding the subject matter described in your First Amended Complaint.
RESPONSE: The Rock Place objects to the foregoing Request as it is vague, overly broad, unduly burdensome, is undefined and unrestricted as to time, and is not reasonably calculated to lead to the discovery of admissible evidence. Sanitary and Improvement District No. 596 of Douglas County, Nebraska (“SID 596”) has the same or similar access to the information requested. See documents produced and filed in CI 19-2434, CI 20-5750, and CI 20-5958. Without waiving any objections, see documents produced on February 14, 2022 which are Bates stamped at THG000001-THG001934.
REQUEST NO. 2. All Documents summarizing conversations or communications you had with representatives of Plaintiff or the Third Party Defendants regarding the subject matter described in your First Amended Complaint, except for correspondence exclusively between your legal counsel and you.
RESPONSE: The Rock Place objects to the foregoing Request as it is vague, overly broad, unduly burdensome, is undefined and unrestricted as to time, and is not reasonably calculated to lead to the discovery of admissible evidence. There are no third-party defendants to this action. To the extent this Request meant to request said communications with “Defendants,” the Rock Place states SID 596 has the same or similar access to the information requested. See documents produced and filed in CI 19-2434, CI 20-5750, and CI 20-5958. Without waiving any objections, see documents produced on February 14, 2022 which are Bates stamped at THG000001-THG001934.
REQUEST NO. 3. All written, mechanically recorded, or court reporter statements from any persons or companies which you or your attorneys or agents have taken or obtained, regarding the subject matter described in your First Amended Complaint, except for correspondence exclusively between your legal counsel and you.
RESPONSE: The Rock Place objects to the foregoing Request as it is vague, overly broad, unduly burdensome, is undefined and unrestricted as to time, and is not reasonably calculated to lead to the discovery of admissible evidence. SID 596 has the same or similar access to the information requested. See documents produced and filed in CI 19-2434, CI 20-5750, and CI 20-5958. Without waiving any objections, see documents produced on February 14, 2022 which are Bates stamped at THG002320-THG006624.
REQUEST NO. 4. All leases and amendments between THG Development, LLC and The Rock Place II, Inc., as well as any subleases or assignments, relating to the Property.
RESPONSE: The Rock Place objects to the foregoing Request as it is vague, overly broad, unduly burdensome, and is not reasonably calculated to lead to the discovery of admissible evidence. Without waiving any objections, see documents produced on February 14, 2022 which are Bates stamped at THG002042-THG002060.
REQUEST NO. 5. All letter of intent to purchase and purchase agreements that you have received or entered into regarding the Property from January 1, 2019 to date.
RESPONSE: The Rock Place objects to the foregoing Request as it is vague, overly broad, unduly burdensome, and is not reasonably calculated to lead to the discovery of admissible evidence. Without waiving any objections, see documents produced on February 14, 2022 which are Bates stamped at THG002061-THG002319.
REQUEST NO. 6. All listing or advertisements to offer the Property for sale from January 1, 2019 to date.
RESPONSE: The Rock Place objects to the foregoing Request as it is vague, overly broad, unduly burdensome, and is not reasonably calculated to lead to the discovery of admissible evidence. Without waiving any objections, the Rock Place states that any ads or listings would be in the possession of Evan Meester and/or Results Business Advisors. Discovery continues and the Rock Place reserves the right to supplement any documents in support of this response.
REQUEST NO. 7. All Documents upon which you rely in making the allegations in paragraph 10 of your First Amended Complaint.
RESPONSE: The Rock Place objects to the foregoing Request as it is vague, overly broad, unduly burdensome, and seeks information which is protected by the attorney-client privilege and/or work product doctrine. SID 596 has the same or similar access to the information requested. See documents produced and filed in CI 19-2434, CI 20-5750, and CI 20-5958. Without waiving any objections, see documents produced on February 14, 2022 which are Bates stamped at THG000001-THG006624. Discovery continues and the Rock Place reserves the right to supplement any documents in support of this response.
REQUEST NO. 8. All Documents upon which you rely in making the allegations in paragraph 16 of your First Amended Complaint.
RESPONSE: The Rock Place objects to the foregoing Request as it is vague, overly broad, unduly burdensome, and seeks information which is protected by the attorney-client privilege and/or work product doctrine. SID 596 has the same or similar access to the information requested. See documents produced and filed in CI 19-2434, CI 20-5750, and CI 20-5958. Without waiving any objections, see documents produced on February 14, 2022 which are Bates stamped at THG000001-THG006624. Discovery continues and the Rock Place reserves the right to supplement any documents in support of this response.
REQUEST NO. 9. All Documents upon which you rely in making the allegations found in paragraph 30 of your First Amended Complaint.
RESPONSE: The Rock Place objects to the foregoing Request as it is vague, overly broad, unduly burdensome, and seeks information which is protected by the attorney-client privilege and/or work product doctrine. SID 596 has the same or similar access to the information requested. See documents produced and filed in CI 19-2434, CI 20-5750, and CI 20-5958. Without waiving any objections, see documents produced on February 14, 2022 which are Bates stamped at THG000001-THG006624. Discovery continues and the Rock Place reserves the right to supplement any documents in support of this response.
REQUEST NO. 10. All Documents upon which you rely in making the allegations in paragraph 31 of your First Amended Complaint.
RESPONSE: The Rock Place objects to the foregoing Request as it is vague, overly broad, unduly burdensome, and seeks information which is protected by the attorney-client privilege and/or work product doctrine. SID 596 has the same or similar access to the information requested. See documents produced and filed in CI 19-2434, CI 20-5750, and CI 20-5958. Without waiving any objections, see documents produced on February 14, 2022 which are Bates stamped at THG000001-THG006624. Discovery continues and the Rock Place reserves the right to supplement any documents in support of this response.
REQUEST NO. 11. All Documents upon which you rely in making the allegations in paragraph 97 of your First Amended Complaint.
RESPONSE: The Rock Place objects to the foregoing Request as it is vague, overly broad, unduly burdensome, and seeks information which is protected by the attorney-client privilege and/or work product doctrine. SID 596 has the same or similar access to the information requested. See documents produced and filed in CI 19-2434, CI 20-5750, and CI 20-5958. Without waiving any objections, see documents produced on February 14, 2022 which are Bates stamped at THG000001-THG006624. Discovery continues and the Rock Place reserves the right to supplement any documents in support of this response.
REQUEST NO. 12. With regard to your First Amended Complaint, all Documents on which you rely to calculate all of your “past, present, and future general and special damages,” punitive, treble and statutory damages, losses, just compensation, attorney, appraisal and expert fees and costs.
RESPONSE: The Rock Place objects to the foregoing Request as it is vague, overly broad, unduly burdensome, and seeks information which is protected by the attorney-client privilege and/or work product doctrine. SID 596 has the same or similar access to the information requested. See documents produced and filed in CI 19-2434, CI 20-5750, and CI 20-5958. Without waiving any objections, see documents produced on February 14, 2022 which are Bates stamped at THG000001-THG006624. Discovery continues and the Rock Place reserves the right to supplement any documents in support of this response.
REQUEST NO. 13. If you seek to recover severance damages, all Documents you rely on to identify in detail the nature, extent and formula by which you calculate any severance damages.
RESPONSE: The Rock Place objects to the foregoing Request as it is vague, overly broad, unduly burdensome, and seeks information which is protected by the attorney-client privilege and/or work product doctrine. Without waiving any objections, the Rock Place states it is still in the process of obtaining experts to ascertain the full nature and extent of the Defendants' taking and the amount of just compensation owed to the Rock Place. By way of further responding, SID 596 has the same or similar access to the information requested. See documents produced and filed in CI 19-2434, CI 20-5750, and CI 20-5958. Without waiving any objections, see documents produced on February 14, 2022 which are Bates stamped at THG000001-THG006624. Discovery continues and the Rock Place reserves the right to supplement any documents in support of this response.
EXHIBIT C
PLAINTIFF'S ANSWERS TO DEFENDANTS' FIRST SET OF INTERROGATORIES
INTERROGATORY NO. 1. Identify each person or company having knowledge of any facts or documents pertaining to the allegations set forth in Plaintiff's First Amended Complaint and Defendants' Answer in this action, the general nature of the knowledge you believe each such person or company has and the contact information for each such person or company.
ANSWER:
Michael Haffke c/o Sherrets Bruno & Vogt, LLC
260 Regency Parkway Drive, Suite 200
Omaha, NE 68114 402-390-1112
Member of The Rock Place II, Inc. (“the Rock Place”). Has knowledge of the operations and revenues of the Property, the impact and damages caused by SID 596's taking of the Property and the Rock Place's leasehold interest, the actions undertaken by Defendants as they relate to the taking and their claimed “special assessments” against the Property, and communications with Defendants and the City of Omaha.
Brenda Monter c/o Sherrets Bruno & Vogt, LLC
260 Regency Parkway Drive, Suite 200
Omaha, NE 68114 402-390-1112
Representative of the Rock Place. Has general knowledge of the operations and revenues of the Property, the impact and damages caused by SID 596's taking of the Property and the Rock Place's leasehold interest, the actions undertaken by Defendants as they relate to the taking and their claimed “special assessments” against the Property, and communications with Defendants and the City of Omaha.
Jeff Elliott c/o Koley Jessen, PC, LLO
1125 S 103rd Street, Suite 800
Omaha, NE 68124
Defendant and Board member and Trustee of SID 596. Has knowledge of the operations of SID 596, the operations of Woodsonia-204 Center, LLC (“Woodsonia”), his and the other Defendants' representations to not specially assess properties outside of SID 596's boundaries, the discussions involved with and the decision to issue special assessments against the Property.
Andrew Snyder c/o Koley Jessen, PC, LLO
1125 S 103rd Street, Suite 800
Omaha, NE 68124
Defendant and Board member and Trustee of SID 596. Has knowledge of the operations of SID 596, the operations of Woodsonia, his and the other Defendants' representations to not specially assess properties outside of SID 596's boundaries, the discussions involved with and the decision to issue special assessments against the Property.
Tanya Mainelli c/o Koley Jessen, PC, LLO
1125 S 103rd Street, Suite 800
Omaha, NE 68124
Defendant and Board member and Trustee of SID 596. Has knowledge of the operations of SID 596, the operations of Woodsonia, her and the other Defendants' representations to not specially assess properties outside of SID 596's boundaries, the discussions involved with and the decision to issue special assessments against the Property.
Carson Stratman c/o Koley Jessen, PC, LLO
1125 S 103rd Street, Suite 800
Omaha, NE 68124
Defendant and Board member and Trustee of SID 596. Has knowledge of the operations of SID 596, the operations of Woodsonia, his and the other Defendants' representations to not specially assess properties outside of SID 596's boundaries, the discussions involved with and the decision to issue special assessments against the Property.
Sandi Hollingsworth c/o Koley Jessen, PC, LLO
1125 S 103rd Street, Suite 800
Omaha, NE 68124
Defendant and Board member and Trustee of SID 596. Has knowledge of the operations of SID 596, the operations of Woodsonia, her and the other Defendants' representations to not specially assess properties outside of SID 596's boundaries, the discussions involved with and the decision to issue special assessments against the Property.
Larry Jobeun
11440 West Center Road #C
Omaha, NE 68144 402-334-0700
Counsel for Woodsonia and SID 596. Has knowledge of the formation of SID 596, the taking of the Property, the Defendants' representations before the Douglas County District Court, and topics discussed at various board meetings for SID 596, including the decision to specially assess the Property.
Timothy Snyder c/o Sherrets Bruno & Vogt LLC
260 Regency Parkway Drive, Suite 200
Omaha, Nebraska 68114 402-390-1112
THG employee. May have knowledge of the operations of the Property, the impact and damages caused by SID 596's taking, and was present at some meetings with the City.
Tinkham Land Surveying, Inc.
9910 No. 48th Street, Suite 208
Omaha, Nebraska 68152-1548 402-451-2088
Surveyed the property. Has knowledge of the Property, the survey, and the cost of the survey.
Rich Lincoln and other representatives
Scales Sales & Service, LLC
8615 Vernon Avenue
Omaha, Nebraska 68134
Has knowledge of the need to place new scale as a result of the taking and the cost of the scale.
Kevin Garbez and other representatives
American Fence Company
7722 F Street
Omaha, Nebraska 68127 531-329-4409
Has knowledge of the need to put gates in the fence, add new poles, replace portions of old fence, and add new fence as a result of the taking and the cost of the needed improvements.
Representatives of Valley Corporation
28001 Ida Circle
PO Box 589
Valley, Nebraska 68054 402-359-2578
Contractor. Has knowledge of impact of taking upon the Property, the need for soil removal and asphalt lot construction and the cost of the required improvements needed to maintain operations.
Homero Ramirez and other representatives
Amanco Construction, LLC
4606 Hamilton Street
Omaha, Nebraska 68132 402-378-6183
Has knowledge of the need to lay concrete to move bins required as a result of the taking and the cost of doing so.
Steven Thole and other representatives
Rock Solid Poured Walls, Inc.
22226 Brookcrest Drive
Elkhorn, Nebraska 68022 402-306-6353
Has knowledge of the need to pour walls for the rock bins required as a result of the taking and the cost of doing so.
Ronald Blue c/o Sherrets Bruno & Vogt LLC
260 Regency Parkway Drive, Suite 200
Omaha, Nebraska 68114 402-390-1112
Former employee/present contractor for THG. May have knowledge of the operations of the property and the impact and damages caused by the taking and to the Rock Place.
Ryan Haas
Employee of the City of Omaha Planning Department
1819 Farnam Street, Suite 1100
Omaha, Nebraska 68183
Had knowledge of the area and coordinated aligning of the roads for the development.
Rod Dahlquist and Tom Monaghan
1403 Farnam Street, Suite 232
Omaha, Nebraska 68102 402-884-7044
Prior counsel for THG. Have knowledge of the proceedings and the discussions and actions of Defendants.
Jack Liebentritt
c/o Sherrets Bruno & Vogt LLC
260 Regency Parkway Drive, Suite 200
Omaha, Nebraska 68114 402-390-1112
Operations manager of the Rock Place. Has knowledge of the operations and revenues of the Property, the impact and damages caused by the taking, and communications with SID 596 and Jeff Elliott.
Kevin Moline estimator from or other representatives of Linhart Construction
4949 S 66th Plaza
Omaha, NE 68117 402-339-6748
Examined the retaining wall, drawings, and specifications of the Proeprty. Linhart is expected to testify that the wall was negligently designed and installed. Is expected to testify that the retaining wall needs to be torn down and properly rebuilt and the cost of doing so.
Justin Wulf
Wulf Enterprises
12752 County Road 15
Arlington, NE 68002
Provided a bid for tearing out matting, hauling in dirt, and re-grading the area for proper drainage.
Mark Jonas Trucking
24944 482nd Avenue
Garretson, S.D. 57030
Has knowledge of the numerous asphalt loads that took place March of 2019 to present and the cost of doing so.
Evan Nekuda
Corner Stone Surveying, LLC14225 Dayton Circle, Suite #15
Omaha, Nebraska 68134
Surveyed the property. Has knowledge of the Property, the survey, and the cost of the survey.
Rock It Express Inc.
3405 Sought 204th Street
Elkhorn, Nebraska 68022
Has knowledge of asphalt hauling and the cost of doing so.
A & S Concrete Recycling, Inc.
6002 North 89 Circle
Omaha, Nebraska 68134
Has knowledge of the numerous asphalt loads/grindings that took place March of 2019 to present and the cost of doing so.
David Iske
Eastern Nebraska Builders
24617 West Center Road
Waterloo, Nebraska 68069
Knowledge of drive widening, pouring, storm drainage, and replacement and cost of the same.
Dave Oster
Pro-Sign & Screen Printing
8704 Washington Circle
Omaha, Nebraska 68127
Provided a bid for signs now need to help direct traffic to proper areas of the Property due to limited accessibility.
Evan Meester
President
Results Business Advisors
12020 Shamrock Plaza, Suite 200
Omaha, NE 68154
(402) 913-9080 Office
(402) 880-9054 Cell
Broker who has been attempting to sell the Property and the Rock Place business. Aware of damage caused by SID interference and slander of title.
Alex Pearson
Elkhorn Lawn Care
14983 Grover St
Omaha, NE 68144
Former prospective buyer of the Property and the Rock Place business. Has knowledge of reasons for withdrawing from the sale. Has knowledge of Defendants' claimed special assessments, interference, and slander of title.
NLH Enterprises II, LLC / Groundscapes c/o Lori and Nick Heimann
6065 N 261st Cir.
Valley, NE 68064
Former prospective buyer of the Property and the Rock Place business. Has knowledge of reasons for withdrawing from the sale. Has knowledge of Defendants' claimed special assessments, interference, and slander of title.
Pat Ackerman
402-536-0723
Former prospective buyer of the Property and the Rock Place business. Has knowledge of reasons for withdrawing from the sale. Has knowledge of Defendants' claimed special assessments, interference, and slander of title.
Paul Halbur
Fraser Stryker PC LLO
409 South 17th Street, Suite 500
Omaha, NE 68102 402-978-5342
Attorney representing THG and the Rock Place in the prospective sales of the Property and the Rock Place business.
Larry Roland
Goosmann Law Firm, PLC17838 Burke Street, Suite 250
Omaha, NE 68118
Attorney representing Groundscapes in the prospective sale of the Property and the Rock Place business.
Brad Huyck
TD2 Engineering
10836 Old Mill Road
Omaha, NE 68154
Engineer believed to have knowledge relating to the development of the West Center Village and the water main extension.
INTERROGATORY NO. 2. Set forth the name and contact information of each person whom you intend to call as an expert witness at the trial of this action. For each witness so designated, set forth the following:
a. The subject matter on which the expert is expected to testify;
b. The designated person's qualifications to testify as an expert on such subject;
c. The substance of the facts and opinions to which the expert is expected to testify; and
d. The summary of the grounds for each opinion.
ANSWER: The Rock Place has not yet determined which experts may be utilized or called to testify at trial and intends to supplement this Answer accordingly.
INTERROGATORY NO. 3. Please identify all facts and opinions upon which you rely in making the allegations found in paragraph 10 of your First Amended Complaint.
ANSWER: The Rock Place objects to the foregoing Interrogatory because it is overly broad, compound, unduly burdensome, and solicits information protected by the attorney-client privilege and/or work product doctrine, i.e. “all facts and opinions,” which is unlimited in scope and necessarily calls for The Rock Place's counsel's mental impressions and conclusions relating to claims in this litigation. Without waiving any objections, the Rock Place states Defendants created SID 596 in order to illegally pass off their own private development costs onto third-parties.
The Defendants represented to the Rock Place, THG, the Douglas County District Court, and the City of Omaha that they and all property owners within the SID's boundaries would pay for any special assessments arising out of the development of West Center Village. Defendants made these various admissions and representations in the Articles of Association to form SID 596, in the Subdivision Agreement with the City of Omaha for the development of West Center Village, in their published notices, and repeatedly in their own board meeting minutes. Defendants' own project engineer at Thompson Dreesen Dorner repeatedly confirmed under oath no special assessments were to be issued against the Property as the Property is located outside of SID 596's boundaries. SID 596 also condemned the Property and has used the condemnation proceeding and this proceeding as a means to profit from their and the other Defendants' private development. See also Opposition to Motion for Partial Summary Judgment filed on January 13, 2022 with Index of Evidence, Motion for Partial Summary Judgment filed on January 26, 2022 with Index of Evidence and Supporting Brief, and Motion in Limine filed on January 17, 2022 in Case No. CI 19-2434 and evidence offered in support. The Rock Place reserves the right to supplement this Answer.
INTERROGATORY NO. 4. Please identify all facts and opinions upon which you rely in making the allegations found in paragraph 16 of your First Amended Complaint.
ANSWER: The Rock Place objects to the foregoing Interrogatory because it is overly broad, compound, unduly burdensome, and solicits information protected by the attorney-client privilege and/or work product doctrine, i.e. “all facts and opinions,” which is unlimited in scope and necessarily calls for the Rock Place's counsel's mental impressions and conclusions relating to claims in this litigation. Without waiving any objections, the Rock Place states Defendants created SID 596 in order to illegally pass off their own private development costs onto third-parties. The Defendants represented to the Rock Place, THG, the Douglas County District Court, and the City of Omaha that they and all property owners within the SID's boundaries would pay for any special assessments arising out of the development of West Center Village. Defendants made these various admissions and representations in the Articles of Association to form SID 596, in the Subdivision Agreement with the City of Omaha for the development of West Center Village, in their published notices, and repeatedly in their own board meeting minutes. The Defendants' own project engineer at Thompson Dreesen Dorner repeatedly confirmed under oath no special assessments were to be issued against the Property as the Property is located outside of SID 596's boundaries. SID 596 also condemned the Property and has used the condemnation proceeding and this proceeding as a means to profit from their and the other Defendants' private development. See also Opposition to Motion for Partial Summary Judgment filed on January 13, 2022 with Index of Evidence, Motion for Partial Summary Judgment filed on January 26, 2022 with Index of Evidence and Supporting Brief, and Motion in Limine filed on January 17, 2022 in Case No. CI 19-2434 and evidence offered in support. The Rock Place reserves the right to supplement this Answer.
INTERROGATORY NO. 5. Please identify all facts and opinions upon which you rely in making the allegations found in paragraph 30 of your First Amended Complaint.
ANSWER: The Rock Place objects to the foregoing Interrogatory because it is overly broad, compound, unduly burdensome, and solicits information protected by the attorney-client privilege and/or work product doctrine, i.e. “all facts and opinions,” which is unlimited in scope and necessarily calls for the Rock Place's counsel's mental impressions and conclusions relating to claims in this litigation. Without waiving any objections, the Rock Place states the Developers implemented an inadequate road design which substantially impairs the ingress, egress, and access to the Property. The current access is narrower and more restrictive, inadequate to serve the highest and best use, and potentially unsafe for semitrucks and traffic. There have been many occasions since the Developers' alterations when semi-trucks have suffered damage to their vehicles, been unable to make deliveries, have gotten stuck, have almost collided with other vehicles, have refused to make deliveries because of safety concerns, and have been unable to make the turn coming into the Property. The Rock Place has received multiple complaints from semi-truck drivers that the access is unsafe and dangerous and multiple warnings from semi-truck drivers that if the access is not improved or made safer that they will no longer attempt to access the Property. There is also much less room and usable property available for scales and inventory, storage, customer access, appropriate security measures, and product display. The Developers also negligently designed and installed a retaining wall that creates a 14-foot vertical drop and the loss of significant usable space. The retaining wall continues to deteriorate and needs to be replaced. Significant corrective work is necessary just to minimize some damage and harm caused by the Developers and permit the Property to continue to operate at its current use, such as substantial dirt work, re-grading, relocating the inventory, stockpiled soils, paved displays, concrete bins, and industrial scales, adding fencing and signage, constructing alternative parking, and modifying security measures. See also Opposition to Motion for Partial Summary Judgment filed on January 13, 2022 with Index of Evidence, Motion for Partial Summary Judgment filed on January 26, 2022 with Index of Evidence and Supporting Brief, and Motion in Limine filed on January 17, 2022 in Case No. CI 19-2434 and evidence offered in support. The Rock Place reserves the right to supplement this Answer.
INTERROGATORY NO. 6. Please identify all facts and opinions upon which you rely in making the allegations found in paragraph 31 of your First Amended Complaint.
ANSWER: The Rock Place objects to the foregoing Interrogatory because it is overly broad, compound, unduly burdensome, and solicits information protected by the attorney-client privilege and/or work product doctrine, i.e. “all facts and opinions,” which is unlimited in scope and necessarily calls for the Rock Place's counsel's mental impressions and conclusions relating to claims in this litigation. Without waiving any objections, the Rock Place states the Developers implemented an inadequate road design which substantially impairs the ingress, egress, and access to the Property. The current access is narrower and more restrictive, inadequate to serve the highest and best use, and potentially unsafe for semitrucks and traffic. There have been many occasions since the Developers' alterations when semi-trucks have suffered damage to their vehicles, been unable to make deliveries, have gotten stuck, have almost collided with other vehicles, have refused to make deliveries because of safety concerns, and have been unable to make the turn coming into the Property. The Rock Place has received multiple complaints from semi-truck drivers that the access is unsafe and dangerous and multiple warnings from semi-truck drivers that if the access is not improved or made safer that they will no longer attempt to access the Property. There is also much less room and usable property available for scales and inventory, storage, customer access, appropriate security measures, and product display. The Developers also negligently designed and installed a retaining wall that creates a 14-foot vertical drop and the loss of significant usable space. The retaining wall continues to deteriorate and needs to be replaced. Significant corrective work is necessary just to minimize some damage and harm caused by the Developers and permit the Property to continue to operate at its current use, such as substantial dirt work, re-grading, relocating the inventory, stockpiled soils, paved displays, concrete bins, and industrial scales, adding fencing and signage, constructing alternative parking, and modifying security measures. See also Opposition to Motion for Partial Summary Judgment filed on January 13, 2022 with Index of Evidence, Motion for Partial Summary Judgment filed on January 26, 2022 with Index of Evidence and Supporting Brief, and Motion in Limine filed on January 17, 2022 in Case No. CI 19-2434 and evidence offered in support. The Rock Place reserves the right to supplement this Answer.
INTERROGATORY NO. 7. Please identify all facts and opinions upon which you rely in making the allegations found in paragraph 97 of your First Amended Complaint.
ANSWER: The Rock Place objects to the foregoing Interrogatory because it is overly broad, compound, unduly burdensome, and solicits information protected by the attorney-client privilege and/or work product doctrine, i.e. “all facts and opinions,” which is unlimited in scope and necessarily calls for the Rock Place's counsel's mental impressions and conclusions relating to claims in this litigation. Without waiving any objections, the Rock Place states the Defendants acted with malice in filing the Special Assessments Lawsuit against the Rock Place. The Defendants knew the Subdivision Agreement specifically barred their ability to issue special assessments on properties existing outside the boundaries of SID 596. The Developers made numerous representations in the Subdivision Agreement, Articles of Association, SID board meeting minutes, published notices, and elsewhere specifically stating they would not specially assess properties located outside of SID 596. The Defendants' own project engineer testified that SID 596 could not specially assess the Rock Place or anyone outside the District. The project engineer's “Assessment Schedule” and “Special Assessment Calculations” only permit special assessments in the amount of $360,000, all to be levied against lots located within SID 596. Further, Neb. Rev. Stat. § 31-752 does not establish any legitimate basis for the Defendants to sue the Rock Place for special assessments as the lessee of the Property, not the owner. The Defendants know the Rock Place does not own the Property and that there is no authority for issuing special assessments against the Rock Place. Notwithstanding, the Defendants voted to specially assess the Rock Place and the Property $723,425.61 for some of the costs associated with their private development and the Required Infrastructure. See also Opposition to Motion for Partial Summary Judgment filed on January 13, 2022 with Index of Evidence, Motion for Partial Summary Judgment filed on January 26, 2022 with Index of Evidence and Supporting Brief, and Motion in Limine filed on January 17, 2022 in Case No. CI 19-2434 and evidence offered in support. The Rock Place reserves the right to supplement this Answer.
INTERROGATORY NO. 8. With regard to your First Amended Complaint, identify in detail the nature, extent and formula by which you calculate all of your “past, present, and future general and special damages,” punitive, treble and statutory damages, losses, just compensation, attorney, appraisal and expert fees and costs.
ANSWER: The Rock Place objects to the foregoing Interrogatory because it is overly broad, compound, unduly burdensome, and solicits information protected by the attorney-client privilege and/or work product doctrine. Without waiving any objections, the Rock Place states it is still in the process of obtaining experts to ascertain the full nature and extent of the Defendants' taking and the amount of just compensation owed to the Rock Place. Defendants have further caused significant damages by causing this Special Assessments lawsuit to be filed and asserting special assessments against the Rock Place. When the Special Assessments Lawsuit was filed, Defendants and/or their representatives filed a lis pendens against the Property. There were not less than four (4) prospective buyers of the Rock Place business who backed out of the sale solely because of their concerns about the Special Assessments Lawsuit and the lis pendens. The Rock Place has incurred significant attorney's fees since the commencement of this lawsuit to attempt to negotiate with and/or alleviate the concerns of the prospective buyers regarding this lawsuit and the lis pendens, attempt to clear title to the Property and the Rock Place business, remove the lis pendens, and to defend against the Special Assessments Lawsuit. See also Opposition to Motion for Partial Summary Judgment filed on January 13, 2022 with Index of Evidence, Motion for Partial Summary Judgment filed on January 26, 2022 with Index of Evidence and Supporting Brief, and Motion in Limine filed on January 17, 2022 in Case No. CI 19-2434 and evidence offered in support. The Rock Place reserves the right to supplement this Answer.
INTERROGATORY NO. 9. If you seek to recover severance damages, identify in detail the nature, extent and formula by which you calculate any severance damages.
ANSWER: The Rock Place objects to the foregoing Interrogatory because it is overly broad, compound, unduly burdensome, and solicits information protected by the attorney-client privilege and/or work product doctrine. Without waiving any objections, the Rock Place states it is still in the process of obtaining experts to ascertain the full nature and extent of the Defendants' taking and the amount of just compensation owed to the Rock Place.
DEMAND FOR STATEMENTS
Pursuant to the terms and provisions of Rule 26(b)(3)(C) of the Federal Rules of Civil Procedure, Defendants hereby make demand and request by and through their attorneys of record for a copy of each and every statement given by them, their agents or representatives, all with regard to the subject matter of the incident referred to Plaintiff's First Amended Complaint and Defendants' Answer in this action.
ANSWER: The Rock Place objects to the foregoing demand as it appears to be a Request for Production cast in the form of an Interrogatory, is overly broad, vague, seems to solicit information protected by the attorney-client and work product privileges, and no such demand is authorized by F.R.C.P. 34. Without waiving its objections, the Rock Place does not believe it possesses any statements as demanded that were have not previously been produced in CI 19-2434, CI 20-5750, CI 20 5958, or produced within its Document Production.
(EXHIBIT D OMITTED)
EXHIBIT E
DEFENDANT SID NO. 596'S AMENDED NOTICE TO TAKE FRCP (30)(B)(6) DEPOSITION OF THE ROCK PLACE II, INC., WITH DOCUMENT REQUESTS
TO: THE ROCK PLACE II, Inc., and its attorneys of record, Jason M. Bruno, Robert S. Sherrets, James L. Schneider, Thomas G. Shumacher, SHERRETS BRUNO & VOGT LLC, 260 Regency Parkway Drive, Ste. 200, Omaha, Nebraska 68114.
YOU ARE HEREBY COMMANDED UNDER PENALTY OF LAW pursuant to Fed.R.Civ.P. 30(b)(6), 30(b)(2) and 34, to attend and give your deposition upon oral examination in the above-captioned case and to produce documents at the deposition:
Deponent: The Rock Place II, Inc. (“TRP II”)
Dated: March 24, 2023
Time: 9:30 A.M. (Central Time)
Location: SHERRETS BRUNO & VOGT LLC 260 Regency Parkway Drive, Ste. 200 Omaha, Nebraska 68114
Court Reporter: Matheson Taulborg
The deposition noticed here will be taken for all permissible uses in discovery and for trial. The deposition will be recorded and preserved by a trained and experienced court reporter using pen or machine shorthand verbatim reporting, or multi-track audio recording equipment supplemented by logging procedures, and the transcript of the record shall be furnished to the undersigned attorney of record by the Reporter. The deposition may also be recorded by video.
YOU ARE HEREBY GIVEN NOTICE OF THE DUTY IMPOSED UPON YOU BY LAW TO DESIGNATE AN INDIVIDUAL WHO CONSENTS TO TESTIFY ON YOUR BEHALF, WHO SHALL TESTIFY ON MATTERS KNOWN OR REASONABLY AVAILABLE TO TRP II.
DEFINITIONS
a. The “Property” shall mean the real estate at 3405 South 204th Street, Elkhorn, Nebraska 68022 as TRP II defines it in paragraph 12 in its operative Complaint.
b. “Claimed inverse condemnation” shall mean TRP II's “Unlawful Taking and Damage Against SID 596” in its operative Complaint.
TOPICS TO BE TESTIFIED TO BY DEPONENT:
1. The formation, business history and purposes of TRP II.
2. TRP II's leasehold interest in the Property, including all leases, uses, and whether there was ever a filing with the Douglas County Register of Deeds (or other public filing system) noting the leasehold interest and the portion of the Property actually leased.
3. TRP II's financial affairs from 2015 to date, including financial records (including Profit and Loss Statements, Cash Flow Statements and Balance Sheets), income tax returns, sales tax returns, checking accounts, employees, W2 and 1099 issued, and all rent paid to (or abated or reduced) THG Development, LLC.
4. TRP II's officers, directors, and shareholders from its inception to date.
5. During any lease term in which TRP II leased the Property, identify the managers, officers, directors, shareholders and employees of its landlord THG Development, LLC.
6. Any assignment TRP II made of any interest, right, claim or title relating to its claimed leasehold interest in the Property.
7. Who drafted each lease that TRP II signed relating to the Property, and when they were actually drafted and signed.
8. All claims that TRP II made to or against THG Development, LLC regarding any interference with TRP II's use and enjoyment of the Property and any interference that TRP II claims that claimed inverse condemnation caused to TRP II.
9. When and how TRP II first learned of the condemnation involving THG Development, LLC.
10. What TRP II claims was the “taking” as part of its claimed inverse condemnation.
11. All facts and opinions relating to TRP II's request for an award of “all past, present, and future general and special damages, pre- and postjudgment interest, punitive damages, and statutory damages in an amount to be determined at trial” and all damages, severance damages, takings, losses, expenses, relocation benefits, fees and costs which TRP II claims to have incurred or suffered as a result of the claimed inverse condemnation.
12. The facts and opinions as to how and to what extent the claimed leasehold interest of TRP II decreased in fair market value (i) as to the claimed taking, or (ii) as to the remaining property that was not taken.
13. The facts and opinions as to how and to what extent the improvements installed by SID 596 on or near the Property may have resulted in special benefits to TRP II taken and remaining claimed leasehold property.
14. The allegations in your Complaint relating to the claimed inverse condemnation.
15. TRP II's discovery responses and document production.
16. The attorneys, accountants and business/real estate listing agents/brokers that TRP II used from 2015 to date.
17. The Affidavits that TRP II offered in support of and in opposition to the motions of summary judgment filed in this case.
18. The expert reports and appraisals issued in the THG Condemnation Case.
19. The verdicts and judgments entered in the THG Condemnation Case.
20. How the claimed leasehold interest and business of TRP II was impacted by SID 596's taking of 1/3 acre in fee simple and of a 9 month temporary construction easement of 2 acres on the Property.
21. How the claimed leasehold interest and business of TRP II was impacted by SID 596's construction of driveways, entry ways and a retaining wall on the Property.
22. The Board of Appraisers award in the Douglas County County Court relating to the taking of 1/3 acre in fee simple and of a temporary construction easement of 2 acres on the Property, and the appeal THG Development LLC, d/b/a The Rock Place filed an appeal to the Douglas County District Court.
23. The decision to sell the Property and the business operated on the Property, including the reasons, timing, and those involved in that decision.
24. The marketing/listing for sale of the Property and the business operated on the Property, including the reasons, timing, and those involved in that decision and marketing/listing.
25. Materials and information provided to prospective purchasers of the Property and the business operated on the Property.
26. The negotiations for sale of the Property and the business operated on the Property, including the reasons, timing, and those involved in that decision and negotiations.
27. The purchase and sale agreement for the Property and the business operated on the Property, including the reasons, timing, terms, conditions, and those involved in drafting, signing and close of that agreement; and identify all sold and retained assets of TRP II and THG Development LLC, and assumed or retained liabilities.
28. How the sale proceeds of the Property were allocated among TRP II and THG Development LLC and their various sold assets, rights and interests.
29. In to what bank account were the sale proceeds of the Property deposited for TRP II and THG Development LLC and their various sold assets, rights and interests.
30. The sale price and tax basis for TRP II's and THG Development LLC's various sold assets, rights and interests.
31. Everything TRP II and THG Development LLC sold.
32. Income tax returns for TRP II and THG Development LLC from 2015 to date.
33. The ownership and use of the trade name “The Rock Place.”
DOCUMENT REQUESTS TO DEPONENT:
1. The purchase and sale agreement for the Property and all closing documents exchanged or signed for that closing.
2. Income tax returns for TRP II and THG Development LLC from 2015 to date.
3. All listing agreements for the sale of the Property and the business operated on the Property.
4. All leases and any amendments to such leases that TRP II entered into related to the Property.
5. All of TRP II's Profit and Loss Statements, Cash Flow Statements and Balance Sheets from 2015 to date.
6. All of TRP II's sales tax returns from 2015 to date.
7. Checking account records or cancelled checks showing TRP II's payment of rent for the Property.
8. A report showing the workers for TRP II (whether W2 employees or 1099 contractors) from 2015 to date.
9. The corporate minute book of TRP II, including all corporate notices, minutes, resolutions, stock ledgers, and secretary of state filings.
10. The documents on which TRP II relies to support its claims for “all past, present, and future general and special damages, pre- and postjudgment interest, punitive damages, and statutory damages in an amount to be determined at trial” and all damages, severance damages, takings, losses, expenses, relocation benefits, fees and costs which TRP II claims to have incurred or suffered as a result of the claimed inverse condemnation.
11. All agreements with any business/real estate listing agents/brokers for the sale of the Property and the business operated on the Property.
12. All materials and information provided to prospective purchasers of the Property and the business operated on the Property.
13. All offers and counteroffers to purchase/sell the Property and the business operated on the Property.
14. A document showing how the sale proceeds of the Property were allocated among TRP II and THG Development LLC and their various sold assets, rights and interests.
15. A document showing to what bank account the sale proceeds of the Property were deposited for TRP II and THG Development LLC and their various sold assets, rights and interests.
16. A document showing the sale price and tax basis for TRP II's and THG Development LLC's various sold assets, rights and interests.
17. Documents showing the ownership and use of the trade name “The Rock Place.”
EXHIBIT F
PLAINTIFF'S POSITION STATEMENT REGARDING DISPUTE OVER 30(b)(6) DEPOSITION TOPICS AND RECORDS REQUEST
Plaintiff the Rock Place II, Inc. (“RP II”) submits its position statement pertaining to the notice of deposition duces tecum served upon it by Defendant Sanitary and Improvement District No. 596 (“SID 596”). RP II believes the thirty-three (33) deposition topics and seventeen (17) document requests are overly broad and would impose an unfair burden upon it.
This Court should not require RP II to respond to any of the document requests. This case was filed on July 30, 2020, and the deadlines for written discovery expired long ago. Summary judgment motions have been filed by both parties and were ruled upon. RP II is focusing on preparing this case for trial. RP II only agreed to, and the Court only permitted, limited additional discovery to conduct the deposition of RP II and the parties' experts. This Court did not allow or permit any further written discovery, nor was it asked to. The deposition notice appears to be an attempt to restart discovery at this late stage of these proceedings.
In addition, information requested by SID 596 is already in its possession from discovery conducted in this case and the condemnation filed by SID 596 against THG Development, LLC (“THG”). As SID 596's counsel confirmed in a January 5, 2023 email, “You may have already produced the requested documents, so it may just be a matter of finding the bates stamp numbers to the requested documents.” SID 596 can go through the documents in its possession and utilize them for the purposes of the deposition. This burden should not be imposed upon RP II.
RP II further objects to several of the topics because they seek irrelevant information. SID 596 seeks information arising long after February 14, 2019, the date of valuation stipulated by the parties (Doc. 158), the sale of RP II's business that occurred in 2022, and information from and related to a third party, including financial information and information pertaining to the third party's sale of property that occurred three (3) years after the date of valuation. This Court already determined, multiple times, that the condemnation filed against THG does not impact or eliminate RP II's ability to bring this inverse condemnation claim.