Hall CA-NV, LLC v. Ladera Development LLC

Filing 181

ORDER re: ECF No. 178 Joint Pretrial Order. Bench Trial set for 5/22/2023 at 08:30 AM in Reno Courtroom 3 before Judge Robert C. Jones. Calendar Call set for 5/1/2023 at 10:00 AM in Reno Courtroom 3 before Judge Robert C. Jones. Signed by Judge Robert C. Jones on 11/28/2022. (Copies have been distributed pursuant to the NEF - CJS)

Case 3:18-cv-00124-RCJ-CSD Document 181 Filed 11/28/22 Page 1 of 39

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327 CALIFORNIA AVENUE ~ RENO, NEVADA 89509

ATTORNEYS AND
COUNSELORS AT LAW
Office: [phone] Fax: [phone]
P. O. BOX 62 ~ RENO, NEVADA 89504

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VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA (RENO)

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HALL CA-NV, LLC., a Texas limited liability
company,
Plaintiff,
vs.
LADERA DEVELOPMENT, LLC, a Nevada
limited liability company,
Defendant.
_________________________________________
LADERA DEVELOPMENT, LLC, a Nevada
limited liability company,
Counter-Claimant,

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Case No: 3:18-cv-00124-RCJ-CSD

vs.
HALL CA-NV, LLC, a Texas limited
liability company,
Counter-Defendant.

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JOINT PRETRIAL ORDER

Case 3:18-cv-00124-RCJ-CSD Document 181 Filed 11/28/22 Page 2 of 39

JOINT PRETRIAL ORDER

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Pursuant to Local Rule 16-3, and this Honorable Court's July 26, 2022 Order (ECF No.

3 171), Plaintiff/Counterdefendant Hall CA-NV, LLC ("Hall") and Defendant/Counterclaimant
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Ladera Development, LLC ("Ladera") (collectively "the Parties") hereby submit the following
Proposed Joint Pretrial Order:
(1) A concise statement of the nature of the action and the parties' contentions;

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On March 21, 2018, Hall CA-NV, LLC filed this action against Ladera Development, LLC

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9 with respect to causes of action stemming from Ladera's alleged breach of a certain Intercreditor
10 Agreement with Hall. Ladera brought three counterclaims against Hall, including Fraudulent
11 Misrepresentation, Negligent Misrepresentation, and Declaratory Relief seeking a declaration that
12 the Intercreditor Agreement was void or voidable.
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VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

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In connection with the Cal-Neva resort restoration project, Hall (the Senior Lender) and
Ladera (the Junior Lender) entered into an Intercreditor Agreement. The Intercreditor Agreement
prohibited Ladera from taking certain actions as the junior lender, including in the event of the
borrower's bankruptcy. Here, the borrower did, in fact, file bankruptcy. This Court ruled that

18 “Hall has successfully shown Defendant Ladera is liable for breach of contract for contesting
19 Plaintiff Hall’s superior loan status in the Bankruptcy Court.” (ECF No. 171, 726/22 Order at
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On March 29, 2022, this Court entered an Order granting partial summary judgment in
favor of Hall on Ladera's counterclaims and defenses, including Fraudulent Inducement,
Negligent Misrepresentation, and defenses of Unilateral Mistake, Mutual Mistake, and Failure to
Comply with a Condition Precedent. The Court found that the Intercreditor Agreement was

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Ladera contends that it never contested Hall’s superior loan status in the Bankruptcy Court and that whether
Ladera violated valid portions of the Intercreditor Agreement during the bankruptcy proceedings is still an issue to
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1 enforceable, but that Hall was not entitled to “the title insurance that Defendant Ladera acquired
2 to solely protect its interest in the Property.” (ECF No. 157, 3/29/22 Order at 21.)
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now ruling that “Plaintiff Hall is entitled to the insurance proceeds from the Ladera Insurance
Policy.” (ECF No. 171, 7/26/22 Order at 14.)

The Court stated that “Plaintiff Hall has

successfully shown Defendant Ladera is liable for breach of contract for contesting Plaintiff Hall’s
superior loan status in the Bankruptcy Court,” but that “Plaintiff Hall’s damages for this breach

9 remain unresolved.” (Id. at 2.)
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Hall contends that the amount of such damages remains to be resolved at trial, as well as

11 entry of a final judgment in favor of Hall in accordance with, and to more specifically implement,
12 the Court's summary judgment rulings on Hall's breach of contract claims and declaratory
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VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

On July 26, 2022, this court entered a further Order reconsidering its previous holding and

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judgment claim. Pursuant to the declaratory relief ruling, Hall will seek final judgment on that
issue, which provides for enforcement of the relief granted with respect to the recovery by Hall
against the Ladera title insurance policy.
Ladera contends that Hall is not entitled to any damages because it failed to produce

18 evidence of its alleged damages during discovery and because it failed to provide “a computation
19 of each category of damages” as required by Fed. R. Civ. P. 26(a)(1)(A)(iii). See Fed. R. Civ. P.
20 37(c)(1); Hoffman v. Constr. Protective Servs., Inc., 541 F.3d 1175, 1177 (9th Cir. 2008) (affirming the
21 preclusion of damages evidence as a sanction “for failure to disclose damage calculations under
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Rule 26(a)”). Hall's response is that most of the documentation is invoices for attorney's fees and
costs in the current litigation, and thereby could not be produced in the discovery period as they
were protected by privilege and attorney work product and were changing monthly until the Court
ruled in favor of Hall.
Ladera further contends that Hall seeking attorneys’ fees in the current action is premature.

28 This action is not yet over and Hall would first need to be adjudicated as the prevailing party. To
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1 the extent Hall is seeking attorneys’ fees related to the bankruptcy proceeding and its state court
2 action against Ladera that was removed to the bankruptcy court as a related adversarial action, (1)
3 Hall should have moved for those fees in the bankruptcy action; and (2) at a minimum, Hall should
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based during discovery in this case. As Hall did neither, Ladera contends Hall is not entitled to
present such evidence now and is precluded from obtaining attorneys’ fees as an element of
damages in this case. Hall's position is that it is the prevailing party pursuant to this Court's Orders

9 from March 29, 2022 (ECF 157) and July 26, 2022 (ECF 171), it was not necessary or required to
10 move for fees in the bankruptcy action, and Hall has timely produced its invoicing to support oral
11 testimony on its fees and costs to establish the element of its breach of contract damages. Further,
12 Hall contends it timely disclosed its witnesses on attorney fees in it Rule 26 disclosure, expert
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VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

have disclosed its alleged damages and the attorneys’ fees invoices on which they are purportedly

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witness designation, and stipulation regarding the testimony of one of Hall’s counsel.
(2) A statement of the basis for this court's jurisdiction with specific legal citations;
This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C § 1332(a).
(3) A statement of all uncontested facts deemed material in the action;
1. New Cal-Neva Lodge, LLC ("Borrower") previously owned a certain property that

19 straddles the border of Nevada and California located in Crystal Bay, Washoe County, Nevada
20 and in Placer County, California (the "Property").
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2. Borrower acquired the Property in February 2013 and operated a resort hotel on it known
as the “Cal-Neva Lodge.”
3. On June 26, 2013, Borrower and Plaintiff Hall CA-NV, LLC ("Plaintiff Hall") entered into
a letter of engagement by which Plaintiff Hall tentatively agreed to provide Borrower with a loan
for $29,000,000 "to pay expenditures related to the renovation of improvements on the Property."

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4. Per the letter, final approval of the loan would be based upon certain conditions being met

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2 such as a renovation plan approved by Plaintiff Hall. (Id.)2
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5. Over the next fifteen months, Plaintiff Hall and Borrower negotiated the terms of the
loan, reviewed construction plans, and made modifications before the loan closed on September
30, 2014. (See ECF No. 139 Ex. 1 ("Construction Loan Agreement").)
6. Under this agreement, Plaintiff Hall would loan the money out over time with monthly

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7. Borrower and Defendant Ladera entered into an agreement whereby Defendant Ladera

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10 would loan $6,000,000 to Borrower “in connection with the refinance, renovation, ownership and
11 operation” of the Property, which loan also closed on September 30, 2014. (ECF No. 139 Ex. 3
12 ("Junior Loan Agreement").)
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VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

installments as needed. (Id. § 12.)3

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8. Defendant Ladera indicated that the loan was worth the risk involved if Ladera’s loan were
to be second in priority only to Plaintiff Hall's loan, which Plaintiff Hall acknowledged in an
internal memorandum dated September 15, 2014. (ECF No. 145 Ex. 11 ("Hall Memo") at 2
("Ladera is requiring a 2nd lien secured by the property, and a pledge of the Borrower partnership

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18 interest.").)

9. Before the September 30, 2014 closing date, Plaintiff Hall and Defendant Ladera entered

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20 into a separate agreement, whereby Plaintiff Hall's loan would be senior to Defendant Ladera's
21 loan. (ECF No. 139 Ex. 4 ("Intercreditor Agreement").)
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10. The Intercreditor Agreement imposed a number of duties onto Defendant Ladera,
including:

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Order (ECF No. 171, P. 3, L. 5-13)
Order (ECF No. 171, P. 3, L. 14-17)
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Order
(ECF No. 171, P. 3, L. 18-23; P. 4, L 1-3)
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Case 3:18-cv-00124-RCJ-CSD Document 181 Filed 11/28/22 Page 6 of 39

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327 CALIFORNIA AVENUE ~ RENO, NEVADA 89509

ATTORNEYS AND
COUNSELORS AT LAW
Office: [phone] Fax: [phone]
P. O. BOX 62 ~ RENO, NEVADA 89504

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VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

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1. "Junior Lender shall not in any manner interfere with Senior Lender's security
interests in the Property unless and until all of the Senior Debt is no longer
outstanding." (Id. at 4.)
2. "Junior Lender agrees that it will not at any time contest the validity, perfection,
priority or enforceability of any of the Senior Debt, any of the Senior Loan
Documents, or any of the liens and security interests of Senior Lender in the
Property or other collateral securing the Senior Debt." (Id. at 5.)
3. "Junior Lender agrees that in connection with any Insolvency Proceeding
commenced by or against Borrower or any member of Borrower, it will… not
take any action or vote in any way so as to (A) contest the legality, validity or
enforceability of this Agreement or any Senior Loan Document . . . ." (Id. at
11.)
4. "Notwithstanding anything to the contrary contained in this Agreement,
during the continuance of any Insolvency Proceeding, the Senior Debt shall
first be indefeasibly paid and satisfied in full in cash before any payment or
distribution of cash or other property is made upon the Junior Debt. In any
Insolvency Proceeding, any payment or distribution which may be payable or
deliverable with respect to the Junior Debt shall be paid or delivered directly
to Senior Lender for application to the payment and satisfaction of the Senior
Debt unless and until the Senior Debt shall have been indefeasibly paid and
satisfied in full in cash." (Id. at 10.)
5. "If applicable, Junior Lender agrees to vote for any plan of reorganization
approved by Senior Lender in respect of Borrower in any Insolvency
Proceeding respecting Borrower; provided, however, that Senior Lender
agrees not to unreasonably withhold or delay its consent to Junior Lender's
voting for a different plan of reorganization if (i) the different plan is at least
as beneficial to Senior Lender (including without limitation with respect to
Senior Lender's payment, lien and remedy rights thereunder) as the plan
approved by Senior Lender, and (ii) Junior Lender agrees in writing (A) that
any payments received by Junior Lender by virtue of such Insolvency
Proceeding will be held by Junior Lender in trust for the benefit of Senior
Lender until such time as the Senior Debt is satisfied in full, and (B) if the
Senior Debt will not be satisfied in full by virtue of such Insolvency
Proceeding, promptly pay over to Senior Lender the payments so held in trust
up to the amount of the deficiency." (Id.)
6. "Junior Lender agrees not to oppose any post-petition motion filed or
supported by Senior Lender, including, without limitation, motions for
adequate protection with respect to the ordinary course of its business or for
post-petition borrowing from Senior Lender." (Id. at 12.)
7. "Junior Lender shall release insurance proceeds and condemnation awards, to
be applied to the restoration of the Property or to payment of the indebtedness
evidenced and secured by the Senior Loan Documents, in the same manner as
Senior Lender, under, the terms and provisions of the Senior Loan
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Documents, so that no conflicts are created by and among Senior Lender,
Junior Lender, or others in the application of insurance proceeds or
condemnation awards. Senior Lender has the sole and exclusive right, as
against Junior Lender, to adjust settlement of insurance claims under the
insurance policies in the event of any covered loss or destruction. All proceeds
of such insurance related to the Property shall inure to the Senior Lender, and
Junior Lender shall cooperate (if necessary) in a reasonable manner in effecting
the payment of such insurance proceeds to Senior Lender. In the event Senior
Lender permits the Borrower to utilize the proceeds of insurance to replace
any part of the Property, the consent of Senior Lender shall be deemed to
include the consent of Junior Lender." (Id. at 5.)5

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327 CALIFORNIA AVENUE ~ RENO, NEVADA 89509

ATTORNEYS AND
COUNSELORS AT LAW
Office: [phone] Fax: [phone]
P. O. BOX 62 ~ RENO, NEVADA 89504

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11. Plaintiff Hall purchased a title insurance policy from Old Republic National Title
Insurance Company (“Old Republic”), which Old Republic has taken the position fails to cover
any superior mechanics’ lien arising from Penta’s prior work on the Property. (ECF No. 145 Ex.
22 (“Hall Insurance Policy”) at LAD006948, LAD006973 (omitting standard coverage for “[t]he
lack of priority of the lien of the Insured Mortgage upon the Title . . . as security for each and

14 every advance of proceeds of the loan secured by Insured Mortgage over any statutory lien for
15 services, labor, or material arising from construction of an improvement or work related to the

VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

16 land when the improvement or work is either (i) contracted for or commenced on or before Date
17 of Policy; or (ii) contracted for, commenced, or continued after Date of Policy if the construction
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is financed, in whole or in part, by proceeds of the loan secured by the Insured Mortgage that the
Insured has advanced or is obligated on Date of Policy to advance ”).)6
12. Defendant Ladera also purchased title insurance from Old Republic (ECF No. 145 Ex. 23

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("Ladera Insurance Policy").)
13. Unlike the position taken by Old Republic as to Plaintiff Hall’s insurance policy,

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Order (ECF No. 171, P. 4, L. 4-24; P. 5, L. 1-9)
Order (ECF No. 171, P. 5, L. 11-18)
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14. Before the parties closed the loans in September 2014, some construction work was

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2 performed on the Property from fall 2013 to January 2014. This work included the following:
3 work on a model room, repair the roof, replace the boiler, remove trees, and abatement work for
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asbestos. (ECF No. 145 Ex. 5 ("Jaynes Depo") at 89:2–22.)

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15. To complete this work, Borrower hired the PENTA Building Group ("Penta"). Plaintiff

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Office: [phone] Fax: [phone]
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2013. (Id. at 63:8–11.)8
16. Under Nevada Revised Statutes Chapter 108, contractors generally enjoy a lien on

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10 properties on which they have performed work. Nev. Rev. Stat. § 108.225. These liens are prior
11 over subsequent deeds of trust and mortgages. Nev. Rev. Stat. §§ 108.2453, 108.2457. As such,
12 Penta arguably had a first-in-line lien on the Property, giving Penta's lien priority over Plaintiff
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Hall's and Defendant Ladera's deeds of trust.9

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17. Between the 2013 work and the closing of the loans, Plaintiff Hall and Penta made several

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VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

Hall's 30(b)(6) witness, Michael Jaynes, admits that he was aware of this construction work by late

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representations that at least appeared to posit that Penta had not performed any work on the
Property before the closing of the loans.
18. First, there was a document titled "Contractor's Agreement and Consent to Assignment

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19 of Construction Documents," which Penta and Plaintiff Hall signed on September 29, 2014. (ECF
20 No. 145 Ex. 17 ("Contractor's Agreement").) This document states:
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Under the Agreement, no work of any kind (including the destruction or removal
of any existing improvements, site work, clearing, grubbing, draining, or fencing)
has been commenced or performed on the property described in the Agreement
and no equipment, or materials have been delivered to the property described in
the agreement for any purpose whatsoever. (Id. at 1.)

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Order (ECF No. 171, P. 6, L. 3-8)
Order (ECF No. 171, P. 6, L. 9-13)

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1 The Contractor's Agreement defines the term "Agreement" collectively to include "any other
2 agreements executed by [Penta] and [Borrower] in connection with the [Property]." (Id.)10
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19. Second, the deeds of trust providing Defendant Ladera with a lien on the Property list
Defendant Ladera as having a "second priority lien." (ECF No. 145 Ex. 13 ("Deeds of Trust") at
1.) This is in spite of the fact that Penta arguably had the first-in-line lien, making Plaintiff Hall
the second-in-line lien and Defendant Ladera the third-in-line lien.11
20. Third, several places in the Junior Loan Agreement indicate that Defendant Ladera will be

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9 granted "a second priority lien on the" Property. (Junior Loan Agreement at 2.) Under an article
10 titled "CONDITIONS PRECEDENT TO LENDING," Defendant Ladera's lien "must be duly
11 perfected and in a second priority lien position subject only to the deed of trust securing" Plaintiff
12 Hall's lien. (Id. at 6.)12
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VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

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21. Fourth, the Intercreditor Agreement states that Defendant Ladera's "Junior Note is
secured by (i) that certain second lien Deed of Trust, Security Agreement, Assignment of Rents
and Fixture Filing to be recorded in the real property records." (Intercreditor Agreement at 1.)
This agreement also included two lists of documents called the "Junior Loan Documents" and the

18 "Senior Loan Documents," and stated that "true, correct and complete copies” of the Senior Loan
19 Documents had been delivered to Ladera and “true, correct and complete copies” of the Senior
20 Loan Documents had been delivered to Hall. (Id. at 6.) The documents were not attached to the
21 Intercreditor Agreement; the titles were merely listed. (Id. at Exs. B, C.) Among these lists are the
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Contractor's Agreement, Deeds of Trust, and Junior Loan Agreement. (Id.)13

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Order (ECF No. 171, P. 6, L. 14-24)
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Order (ECF No. 171, P. 7, L. 5-9)
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Order (ECF No. 171, P. 7, L. 10-17)
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22. In early 2016, Borrower fell behind on its financial obligations, and Plaintiff Hall declared

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23. Penta filed certain lawsuits in state court in Nevada and California, including against Hall.

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24. Borrower filed for Chapter 11 Bankruptcy on July 28, 2016. The bankruptcy court merged
the Nevada state court Penta litigation with the ongoing bankruptcy proceeding.
25. Hall and Ladera filed counterclaims against Penta.

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26. Ladera also filed other documents in the bankruptcy proceeding.

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10 2017 (ECF Nos. 490 & 491). (HALL010827; HALL010903.)
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28. Following the filing of Ladera’s Second Amended Plan of Liquidation for New Cal-Neva

12 Lodge, LLC Dated July 5, 2017 (ECF No. 754, filed 8/7/17) and accompanying Disclosure
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VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

27. Ladera filed a Plan of Reorganization and Disclosure Statement both dated March 21,

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Statement (ECF No. 755) (HALL011455; HALL011532), Hall demanded via a letter dated August
9, 2017, that Ladera withdraw its plain within 24 hours and indicate in writing it would support
the Committee Plan (filed by the Official Committee of Unsecured Creditors and Lawrence
Investments, Inc.). (HALL012196-99.)
29. Hall's August 9, 2017, letter contended that Ladera's Second Amended Plan of Liquidation

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19 for New Cal-Neva Lodge, LLC Dated July 5, 2017 breached the Intercreditor Agreement and
20 demanded that Ladera withdraw its plan and commit in writing to supporting the Committee Plan
21 by August 10, 2017. Such letter set forth the following nonexclusive list of contended breaches of
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the Intercreditor Agreement by Ladera:

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Order (ECF No. 171, P. 9, L. 13-14)

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327 CALIFORNIA AVENUE ~ RENO, NEVADA 89509

ATTORNEYS AND
COUNSELORS AT LAW
Office: [phone] Fax: [phone]
P. O. BOX 62 ~ RENO, NEVADA 89504

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VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

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30. Ladera responded to Hall via a letter the next day (August 10, 2017), stating that the
Intercreditor Agreement “permits Ladera to support an alternative” plan “that is at least as
beneficial to Hall” and explaining why Ladera thought its plan was equally beneficial to Hall or
“could be amended to address Hall’s treatment, if necessary.” (HALL012201-03.)
31. Ladera noted that it “has the right to defend its secured claim under Paragraph 13(f) of

23 the Intercreditor Agreement and Ladera would need to confirm that any changes to the Lawrence
24 Investments plan [the Committee Plan] would not violate Ladera’s rights to its secured claim.”
25 (Id.)
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32. Ladera also stated that it would comply with Hall’s request to “withdraw its Plan [the
Ladera Plan] at the August 16, 2017 Disclosure Statement hearing on the conditions that (i) the

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1 Lawrence Investment Plan promptly proceeds to confirmation with Hall’s support and without
2 any change to Ladera’s treatment (as described on Page 4 of the Lawrence Plan), (ii) there will be
3 no side deals or negotiations to distribute the Sales Proceeds currently provided for Ladera under
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bidding on terms approved by the Court.” (Id.)
33. Ladera did not immediately withdraw its plan as demanded by Hall. Four days later, on
August 14, 2017, Hall filed a complaint against Ladera in Nevada state court, along with an ex parte

9 application for a temporary restraining order (TRO) and motion for preliminary injunction.
10 (HALL011729; HALL012204.)
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34. Two days later the state court granted Hall a TRO on August 16, 2017, ordering Ladera

12 to withdraw its Second Amended Plan and Disclosure Statement and prohibiting Ladera “from
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VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

the Lawrence Investments Plan or otherwise out of priority, and (iii) the plan allows for credit

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supporting and voting for any Bankruptcy plan other than a Bankruptcy plan that Hall approves
and deems to be more beneficial to Hall.” (HALL013248-54.)
35. On August 22, 2017, Ladera filed a Notice of Removal, removing the state court action to
the pending bankruptcy matter as a related adversary case. (HALL013255.)
36. On August 24, 2017, the parties appeared at a hearing in the removed bankruptcy action

19 before the Honorable Gregg W. Zive.
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37. On August 25, 2017, the bankruptcy judge (Judge Zive) issued an order terminating the

21 TRO, stating that the TRO “is orally dissolved as of the date and time of the August 24 hearing
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and is of no force or effect on Ladera.” (Case 17-05039-gwz, ECF No. 13.)
38. On September 5, 2017, Hall and Ladera filed a stipulation to extend the deadline for Ladera
to respond to Hall’s complaint. (Case 17-05039-gwz, ECF No. 14.) Hall and Ladera jointly
represented that the “extension is requested to allow the Debtor’s scheduled plan confirmation

27 hearing set for September 14, 2017, to proceed and to explore a consensual resolution to the
28 claims asserted in the Complaint prior to pursuing litigation.” (Id.)
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1

39. On September 28, 2017, Hall filed a notice of voluntary dismissal of its complaint pursuant

2 to Fed. R. Civ. P. 41(a)(1)(A)(i) (made applicable to adversary proceedings by Fed. R. Bankr. P.
3 7041). (Case 17-05039-gwz, ECF No. 16.)
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Compromise and Settlement Agreement and Dismissal Under FRCP 7041. (Case 16-51282-gwz,
ECF No. 1044.)
41. Hall represented in that pleading that “Ladera has already advised that it will not object to

9 the Plan modification or the sale but has not stated its position as to the settlement agreement that
10 is the subject of this motion.” (Id.)
11

42. Ladera filed a two-page limited response to the joint motion, explaining that Ladera “was

12 excluded from the settlement negotiations,” but nevertheless “has not objected to the sale to
13
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VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

40. On December 15, 2017, Hall and other parties filed a Joint Motion to Approve

17

Lawrence Investments, has not appealed the Court’s confirmation order, has not sought a stay of
that order and is disappointed that the sale has been delayed.” (HALL011619-20.)
43. Ladera explained, “To expedite the sale to Lawrence Investments, Ladera does not intend
to oppose the sale and settlement provided that (1) Ladera’s title insurer, Old Republic, does not

18 oppose Hall’s proposed settlement and does not request or require that Ladera oppose the
19 settlement, (2) the terms of the settlement are the same as terms recently emailed to Ladera and
20 set forth on Exhibit 1, and (3) Ladera reserves all its legal rights against Hall, Penta and any other
21 party, including but not limited to any affirmative claims and any claims arising from or relating
22
23
24
25
26

to Ladera’s Intercreditor and Subordination Agreement with Hall.” Id.
44. On December 26, 2017, the bankruptcy court granted the joint motion and approved the
settlement, overruling Ladera’s objection to the dismissal of its claims against Penta with prejudice.
(Case 16-51282-gwz, ECF No. 1074.)

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45. Hall filed the current lawsuit against Ladera on March 21, 2018. (ECF No. 1.)15

2

46. This Court granted Ladera’s initial motion to dismiss with leave for Hall to amend its

3 complaint (ECF No. 8) because Hall had not established by a preponderance of the evidence the
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Order.)
47. On June 21, 2018, Hall filed its Third Amended Complaint (ECF No. 23). On July 6,
2018, Ladera filed its Answer and Counterclaims (ECF No. 26).
48. The Court denied Hall’s motion to dismiss Ladera’s counterclaims (ECF No. 29). (ECF

10 No. 41, 8/27/18 Order.)
11

49. On November 12, 2018, in response to Ladera’s request for production to Hall to

12 “Produce all documents that support your damages in your Complaint,” Hall responded, “Hall
13
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VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

citizenship of the relevant entities sufficient to show complete diversity. (ECF No. 22, 6/19/18

17

will interpret ‘documents that support your damages’ to mean documents that support specific
amounts pleaded in the Third Amended Complaint. To the extent that these documents have not
already been produced as part of Hall’s Rule 26 Pre-Discovery Disclosures, Hall will produce
responsive, non-privileged documents supporting the specific monetary damages referenced in

18 the Third Amended Complaint.” (11/12/18 Plaintiff/Counter—Defendant Hall CA-NV, LLC’s
19 Amended Response to Defendant/Counter-Claimant Ladera Development, LLC’s First Set of
20 Requests for Production of Documents.)
21
22
23
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25
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50. Discovery closed on September 30, 2020. (ECF No. 118, 3/18/20 Joint Stipulated Sixth
Amended Discovery Plan and Scheduling Order.)
51. Without prejudice to refilinga single motion, the Court granted Ladera’s motion to strike
the five separate motions for summary judgment originally filed by Hall, on the basis that the
motions violated the Court’s local rules. (ECF No. 138, 6/7/21 Order.)

27
15
Unless proceeded by a different case number, all documents identified solely by an ECF No. refer to documents in
the
current proceeding, Case 3:18-cv-00124-RCJ-VPC.
28

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1

52. On June 28, 2021, Hall refiled a single motion for summary judgment (ECF No. 139). On

2 March 29, 2022, the Court entered its first Order granting Hall’s request for summary judgment
3 in part and denying it in part. (ECF No. 157). In that Order, the Court found the Intercreditor
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9

Ladera to the contrary. (Id.) The Court further determined that Ladera breached the Intercreditor
Agreement. (Id.) In that Order, the Court denied Hall’s summary judgment claim for insurance
proceeds. (Id.)
53. On July 26, 2022, the Court entered a further Order granting summary judgment in favor

10 of Hall, holding that it is entitled to the proceeds of the insurance policy issued to Ladera pursuant
11 to the Intercreditor Agreement. (ECF No. 171). In that Order, the Court further denied Ladera’s
12 motion to reconsider the Court’s prior order on summary judgment or for certification for an
13
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VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

Agreement to be “valid and enforceable” and granted summary judgment on each contention by

17

interlocutory appeal (Id.; see ECF No. 159, 4/12/2022). The Court further ordered this case to
proceed to a bench trial on the issue of damages. (ECF No. 171).
54. Hall served supplemental disclosures on Ladera on September 19, 2022 – days after it had
sent an initial draft of its pretrial order. (9/19/22 Hall CA-NV, LLC’s First Supplemental

18 Disclosures Pursuant to FRCP 26(e).)
19 (4) A statement of the contested issues of fact in the case as agreed on by the parties;
20

The parties agree that whether Hall is entitled to damages – and the amount of those

21 damages – are contested issues of fact. Ladera contends these are contested issues of law as well.
22
23
24
25
26

Furthermore, the parties each maintain there are certain material facts that the other party disputes,
as described in the sections below.
(5) A statement of the contested issues of law in the case as agreed upon by the parties;
1. Whether Hall has the legal authority to negotiate directly with Old Republic Title

27

Insurance Company on all claims against the Ladera title insurance policy; and, if not,

28

whether Ladera should be ordered to cooperate with Hall in settlement of such claim with
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Case 3:18-cv-00124-RCJ-CSD Document 181 Filed 11/28/22 Page 16 of 39

1

this Court maintaining jurisdiction until such time as the insurance proceeds are settled

2

and disbursed to Hall.

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9
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provide a computation of each category of damages as required by Fed. R. Civ. P.
26(a)(1)(iii).
3. Whether Hall is precluded from presenting evidence of its alleged damages for failure to
disclose or provide, prior to the close of discovery, the documents (including attorney
invoices) “on which each computation is based, including materials bearing on the nature
and extent of injuries suffered” as required by Fed R. Civ. P. 26(a)(1)(iii).

11

4. Whether Hall is entitled to collect as damages in this case attorneys’ fees incurred in

12

connection with the bankruptcy proceeding and state court lawsuit removed to the

13
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VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

2. Whether Hall is precluded from presenting evidence of its alleged damages for failure to

17

bankruptcy court when Hall never moved for attorneys’ fees in those actions.
(6) Plaintiff's statement of any other issues of fact or law deemed to be material;
While there are some representations that at least suggest that Penta had not performed
any work on the Property, there are other representations to Defendant Ladera explicitly stating

18 that such work occurred. For example, Defendant Ladera is owned and operated by two brothers,
19 Jeffrey and James Pickett. On March 28, 2014, six months before closing, James Pickett received
20 an email from Borrower's representative and forwarded that email to Jeffrey Pickett regarding the
21 preconstruction work, stating, "What they spent the 3m on attached." (ECF No. 139 Ex. 10
22
23
24
25

("March 28 Email").) Attached to the email, was a spreadsheet detailing the preconstruction work
that was completed, including that Borrower still owed Penta $133,370. (Id.) It listed the following
construction work that was performed on the property leading up to that date:

26
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10

11 representative and forwarding it to his brother, Jeffrey Pickett, but James does not admit to
16
12 reviewing the attachment. (ECF No. 139 Ex. 6 ("James Pickett Depo") at 215:2–16:11.)

13

In April 2014, James and Jeffrey Pickett exchanged emails with an individual named Brad

14 Rencher containing an attachment titled "Confidential Offering Memorandum for the Project."
15
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VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

(Id.) In his deposition, James Pickett admits receiving this information from Borrower's

17
18
19

(ECF No. 139 Ex. 11 ("Confidential Memo").) They discussed the possibility of extending the
mezzanine loan to Borrower. (Id. at LAD004398–99.) In the attached memorandum, the
preconstruction was listed; "The Property was closed in Sept. 2013 to begin roof repairs, model
room, and abatement work in preparation for the full construction start." (Id. at LAD004446.)

20 Jeffrey Pickett testified that he is "sure" that he had seen the Confidential Memo. (Jeffrey Pickett
17
21 Depo at 253:11–54:3.)

22

In addition to these representations, Penta's Fed. R. Civ. P. 30(b)(6) witness, Mark Briggs,

23 testified that the construction work was "obvious." (ECF No. 139 Ex. 12 ("Briggs Depo") at 51–
24
25
26
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53.) He stated, "Fences were up. Our trailers were out. I'm not sure how you cannot see that
construction was -- that there was activity on the project." (Id.) He further affirmed that the

16
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Order (ECF No. 171, P. 7, L. 18-24; P. 8, L. 1-11)
Order (ECF No. 171, P. 8, L. 12-19)

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1 "fencing had been out there since 2013 and was there well past September 2014." (Id. at 138.) The
2 fencing also had signage, which read, "Construction Zone." (Id. at 139.) Both James and Jeffrey
3 Pickett lived in the area and admitted to seeing the Property frequently. (James Pickett Depo at
4

58; Jeffrey Pickett Depo at 50.)18

5

James and Jeffrey Pickett both testified that they were not sure when they learned of the

6
7

preconstruction work on the Property. For example, James Pickett said, in his deposition,
Q. Sitting here today, do you recall whether you knew that work had been
performed before Ladera Development funded a penny?

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8
9

A. No.

10

Q. No, you don't recall?

11

A. I do not recall.

12
13

Q. Okay. So you could have been told that, and you just don't remember?

14

A. Correct.

15 (James Pickett Depo at 149–50.) Likewise, for example, Jeffrey Pickett testified that he could not

VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

16 recall if he was given access to a "Dropbox," which contained an agreement such as one titled
17 "Preconstruction Services Agreement" between Penta and Borrower. (Jeffrey Pickett Depo at
18

118.)19

19

In early 2016, Borrower fell behind on its financial obligations, and Plaintiff Hall declared

20
21
22

default. Shortly after this default, Penta filed suit against Plaintiff Hall in Nevada state court,
claiming that it had a mechanics' lien with priority over Plaintiff Hall's deed of trust. While this

23 case between Penta and Plaintiff Hall was in the discovery phase, Borrower filed for Chapter 11
24 Bankruptcy on July 28, 2016. The bankruptcy court merged the state court case with the ongoing
25 bankruptcy proceeding. The court then established a $15,000,000 "Lien Litigation Reserve" to
26
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28

18
19

Order (ECF No. 171, P. 8, L. 20-24; P. 9, L. 1-3)
Order (ECF No. 171, P. 9, L. 4-12)

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1 ensure at least partial satisfaction of the liens against the Property. Defendant Ladera litigated
2 against Plaintiff Hall in bankruptcy court to attempt to recover at least partially on its $6,000,000
3 loan. (See, e.g., ECF No. 140 Ex. A ("Ladera Bankruptcy Plan"); Jeff Pickett Depo at 283:2–284:8).
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Both Plaintiff Hall and Defendant Ladera also litigated together against Penta arguing the
mechanics' lien was junior to the deeds of trust. (See, e.g.¸ ECF No. 140 Ex. H ("Motion for
Settlement") at 10 of 31 ("While Hall continues to contest the priority of the liens of PENTA and
the Penta Subcontractors and other subcontractors, Hall recognizes that there is significant risk

20
9 that PENTA will prevail in the priority phase.").)

In the bankruptcy case, Defendant Ladera filed the following disclosure statements and

10
11 plans:
12

Ladera Development, LLC's Plan of Reorganization for Cal Neva Lodge, LLC and
New Cal-Neva Lodge, LLC Dated March 21, 2017 [Bank. Dkt. No. 491];

(ii)

Disclosure Statement for Ladera Development, LLC's Plan of Liquidation for
New Cal-Neva Lodge, LLC Dated July 5, 2017 [Bank. Dkt. No. 690];

(iii)

Ladera Development, LLC's Plan of Liquidation for New Cal-Neva Lodge, LLC
Dated July 5, 2017 [Bank. Dkt. No. 689];

(iv)

Amended Disclosure Statement for Ladera Development, LLC's Amended Plan
of Liquidation for New Cal-Neva Lodge, LLC Dated July 5, 2017 [Bank. Dkt. No.
737];

(v)

Ladera Development, LLC's Amended Plan of Liquidation for New Cal-Neva
Lodge, LLC Dated July 5, 2017 [Bank. Dkt. No. 738];

(vi)

Plan Supplement to Ladera Development, LLC's Amend-ed Plan of Liquidation
for New Cal-Neva Lodge, LLC Dated July 5, 2017 [Bank. Dkt. No. 740];

(vii)

Ladera Development, LLC's Second Amended Plan of Liquidation for New CalNeva Lodge, LLC Dated July 5, 2017 [Bank. Dkt. No. 754]; and,

(viii)

Second Amended Disclosure Statement for Ladera Development, LLC's Second
Amended Plan of Liquidation for New Cal-Neva Lodge, LLC Dated July 5, 2017
[Bank. Dkt. No. 755].

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VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

(i)

17
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20
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26
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20

Order (ECF No. 171, P. 9, L. 13-24; P. 10, L. 1-2)

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Case 3:18-cv-00124-RCJ-CSD Document 181 Filed 11/28/22 Page 20 of 39

1

The foregoing filings by Defendant Ladera compelled Plaintiff Hall to file the following

2 responsive pleadings:
3

(i)

Objection to Disclosure Statement for Ladera Development, LLC's Plan of
Reorganization for Cal Neva Lodge, LLC and New Cal-Neva Lodge, LLC Dated
March 31, 2017 [Bank. Dkt. No. 521];

(ii)

Supplemental Objection to Disclosure Statement for Lad-era Development, LLC's
Plan of Reorganization for Cal Neva Lodge, LLC and New Cal-Neva Lodge, LLC
Dated March 31, 2017 [Bank. Dkt. No. 635];

(iii)

Objection to Disclosure Statement for Ladera Development, LLC's Plan of
Liquidation for Cal-Neva Lodge, LLC Dated July 5, 2017 [Bank. Dkt. No. 713];
and,

(iv)

11

Objection to Second Amended Disclosure Statement for Ladera Development,
LLC's Second Amended Plan of Liquidation for Cal-Neva Lodge, LLC Dated July
5, 2017 [Bank. Dkt. No. 779].

12

Defendant Ladera's filed disclosure statement [Bank. Dkt. No. 755] and plan of liquidation

4
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VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

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[Bank. Dkt. No. 754] violated Plaintiff Hall's rights and Defendant Ladera's obligations under the
Intercreditor Agreement such that it prompted Hall to seek an injunction of the same. For
example, despite the Intercreditor Agreement's explicit requirements, the Ladera Plan (i) proposed
not paying Plaintiff Hall in full, (ii) explicitly stated that it was a cram down plan, and (iii) sought

18 to limit Defendant Ladera's liability to Plaintiff Hall under the Intercreditor Agreement. As a result
19 of Defendant Ladera's wrongful acts, Plaintiff Hall was required to retain counsel and file a suit in
20 the County of Washoe to enforce its rights. In Hall CA-NV, LLC v. Ladera Development, LLC,
21 Case No. CV-17-01526 in the Second Judicial District Court of the State of Nevada, Hall sought
22
23
24
25
26

and obtained an injunction from the Nevada state court against Ladera whereupon Ladera
withdrew its plan. Hall was damaged by the cost of the legal fees it incurred to obtain the
withdrawal of the wrongfully filed plan.
Penta, Plaintiff Hall, Defendant Ladera, and various subcontractors entered into

27 negotiations on the best way to split the $15,000,000 pot. But shortly into these negotiations, the
28 parties were able to exclude Defendant Ladera from participating based upon the Intercreditor
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Case 3:18-cv-00124-RCJ-CSD Document 181 Filed 11/28/22 Page 21 of 39

1 Agreement. The remaining parties to the negotiations agreed to a split of the money divvied up
2 between Plaintiff Hall and the various contractors, and they moved the bankruptcy court for
3 approval of the settlement. In the Motion for Settlement, Plaintiff Hall represented that it would
4
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to the motion to approve this Agreement and the Motion to Dismiss, including but not limited to
taking any action to enforce the Intercreditor Agreement, in the event Ladera breaches the terms
of the Intercreditor Agreement." (Id. at 17 of 31.) Defendant Ladera did not contest the validity

9 and enforceability of the Intercreditor Agreement at that time or at all during the bankruptcy
21
10 proceedings. The bankruptcy court approved the proposed settlement.

11

Defendant Ladera did however file its Limited Response to Joint Motion to Approve

12 Compromise and Settlement Agreement and Dismissal Under FRCP 7041 [Bank. Dkt. No. 1068],
13

which was an objection to the Motion for Settlement and ultimately overruled.

14

The Intercreditor Agreement between the parties is a valid and enforceable contract.22 The

15
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VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

"exercise its rights under the Intercreditor Agreement with Ladera to insure Ladera's nonobjection

17

Intercreditor Agreement imposed a number of restrictions on Defendant Ladera from interfering
with Plaintiff Hall in the collection of its debt with Borrower. Despite these obligations, it is not

18 contested that Defendant Ladera submitted a proposed plan in the bankruptcy proceeding that
19 would have allowed for Defendant Ladera to receive some of the funds that would have otherwise
20 gone to satisfy Plaintiff Hall's debt. This proposal by Defendant Ladera, as well as this instant
21 proceeding in which Defendant Ladera contests the Intercreditor Agreement's validity, violate
22
23
24
25

Defendant Ladera's following duties: (1) to not interfere in any manner with Plaintiff's ability to
collect its debt from Borrower, (Intercreditor Agreement at 4), (2) to not "contest the validity,
perfection, priority or enforceability" of Plaintiff Hall's senior debt, (id. at 5), (3) to not "bringing

26
27
28

21
22

Order (ECF No. 171, P. 9, L. 3-14)
Order (ECF No. 153, P. 19, L. 10)

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1 or consenting to any Insolvency Proceeding unless Senior Lender also joins therein or consents
2 thereto in writing," (id. at 11), and (4) to not "contest the legality, validity or enforceability of" the
3 Intercreditor Agreement. Defendant Ladera does not dispute that these actions constitute
4
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7

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contract for contesting Plaintiff Hall's superior loan status in the Bankruptcy Court24 – resulting
in the state court injunction lawsuit by Plaintiff Hall – for contesting the Intercreditor Agreement
through this instant lawsuit.
The Ladera Insurance Policy is undoubtedly a payment "made on account of the Junior

9

10 Debt or otherwise to or for the benefit of the holder of Junior Debt," so it cannot be paid towards
11 Defendant Ladera as the Junior Debt holder but must rather be paid towards Plaintiff Hall as the
12 Senior Debt holder. 25 Plaintiff Hall is entitled to the insurance proceeds because as of September
13
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VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

violations of the Intercreditor Agreement.23 Therefore, Defendant Ladera is liable for breach of

17

9, 2019, Plaintiff Hall was still owed $8,610,279.02 based on the Construction Loan Agreement
with the Borrower, with interest continuing to accrue. The $8,610,279.02 owed pursuant to the
Construction Loan Agreement with the Borrower is not the amount of damages being sought in
this litigation. The damages being sought by Hall are the maximum amount of Ladera's Insurance

18 Policy which could be applied toward the $8,610,279.02 outstanding debt plus Hall's attorney's
19 fees and costs.
20

Plaintiff Hall was forced by the actions of Defendant Ladera to hire legal counsel originally

21 of Fahrendorf, Viloria, Oliphant & Oster, LLP and Coats Rose to represent it in the bankruptcy,
22
23
24
25

and subsequently the state court case, and this instant lawsuit. Such counsel from the former law
firm continued in representation through the successor firm of Viloria, Oliphant, Oster & Aman,
LLP in January 2019. Such lead counsel – Frank J. Wright – continued in representation in May

26
23

Order (ECF No. 153, P. 20, L. 1-13)
Order (ECF No. 171, P. 2, L. 16-18)
25
Order
(ECF No. 171, P. 16, L. 11-14)
28
27

24

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1 2017 at Gardere Wynne Sewell, LLP, in March 2018 at Foley Lardner, LLP, and in July 2020 at
2 the Law Offices of Frank J. Wright, PLLC.
3
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8

Agreement by this lawsuit26 and with the subsequent Order that, “[t]his Court has held that
Plaintiff Hall has successfully shown Defendant Ladera is liable for breach of contract for
contesting Plaintiff’s Hall’s superior loan status in the Bankruptcy Court.”27 “Plaintiff Hall’s
damages for this breach remain unresolved” and “as these damages are ‘an element of damages

9 under a contract,’ they need to go to trail even though the damages are for attorney fees and
28
10 litigation costs.” On such basis, this Court ordered this case to “proceed to a bench trial on the

11 issue of damages.”29 Plaintiff Hall seeks recovery of attorneys’ fees and expenses both as elements
12 of damages and as the prevailing party in this action under the orders of this Court existing.
13
14
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VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

In accordance this Court’s prior ruling that Defendant Ladera breached the Intercreditor

17

Where an award is contemplated for fee-shifting to a prevailing party under contract, Texas
employs a lodestar method – first, determining the reasonable hours spent by counsel in the case
and a reasonable hourly rate for such work and multiplying the number of such hours by the
applicable rate to generate a base fee or lodestar, and second, making adjustments up or down if

18 relevant factors indicate an adjustment is necessary to reach a reasonable fee in the case. See
19 Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 494 (Tex. 2019) (quoting El
20 Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012)).
21
22
23
24
25

In this instant lawsuit on June 15, 2018, Plaintiff Hall served its Plaintiff’s Rule 26(a) PreDiscovery Disclosure of Witnesses and Documents on Defendant Ladera therein identifying
Frank J. Wright and Nathan Aman, each counsel to Plaintiff Hall, as witnesses on the fees incurred
by Plaintiff Hall. Both Mr. Wright and Mr. Aman were timely disclosed and are competent to

26
26

ECF No. 157, P. 20, L. 1-14
Order (ECF No. 171, P. 2, L. 16-18).
28
Order (ECF No. 171, P. 2, L. 18-24).
28 29 Order (ECF No. 171, P. 2, L. 24; P. 3, L. 1-2).

27

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Case 3:18-cv-00124-RCJ-CSD Document 181 Filed 11/28/22 Page 24 of 39

1 testify on the matters required by and in support of the lodestar calculation. Mr. Wright was also
2 disclosed as an expert witness and the parties entered into a stipulation that avoided the need for
3 his deposition by agreeing that his testimony would be limited to the issue of attorneys’ fees. Both
4
5
6
7

327 CALIFORNIA AVENUE ~ RENO, NEVADA 89509

ATTORNEYS AND
COUNSELORS AT LAW
Office: [phone] Fax: [phone]
P. O. BOX 62 ~ RENO, NEVADA 89504

8

difficulty of the legal questions involved, the skill required to perform the legal services properly,
who performed such legal services, their respective rates, the fee customarily charged in the
localities for similar legal services, approximately when the services were performed, the number

9 of hours actually worked, and the experience, reputation, and ability of the lawyers involved. In
10 support of such testimony, on September 19, 2022, Plaintiff Hall disclosed in its First
11 Supplemental Disclosures Pursuant to FRCP 26(e) to Defendant Ladera the legal invoices that
12 Plaintiff Hall incurred in these cases and seeks to recover upon. The majority of legal invoices are
13
14
15
16

VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

Mr. Wright and Mr. Aman can testify as to the nature of the work performed, the novelty and

17

from the current litigation and thereby could not be produced during the discovery period, and
the bankruptcy invoices were redacted for privilege and to include narrowly tailored invoices
related to Ladera's filing of its plan in the bankruptcy action. The invoices merely support the
testimony to be provided by Mr. Wright and Mr. Aman as to attorney's fees and costs incurred in

18 this litigation and limited entries from the bankruptcy action. Mr. Wright and Mr. Aman are the
19 persons most knowledgeable about the necessity and reasonableness of Plaintiff Hall’s legal
20 actions during the bankruptcy and state court proceedings, as they were counsel of record in those
21 cases. Defendant Ladera suffers no prejudice from Plaintiff Hall’s reliance on these invoices in
22
23
24
25
26

support of Mr. Wright and Mr. Aman’s testimony.
Plaintiff Hall seeks damages of no less than $1,503,801.15 of attorneys’ fees and expenses
incurred by it in the bankruptcy case, state court case, and this instant lawsuit through August 31,
2022; additional legal fees and expenses continue to be incurred by Plaintiff Hall in pursuit of this

27 instant lawsuit, which Plaintiff Hall intends to add to this claim up to the time of trial. The below
28 tables provide overall summary of the stated damages sought through August 31, 2022:
119135131.1

-24-

Case 3:18-cv-00124-RCJ-CSD Document 181 Filed 11/28/22 Page 25 of 39

1

FIRM LEVEL BANKRUPTCY / STATE COURT TOTALS
FIRM
INVOICED FEES INVOICED EXPENSES
Coats Rose
$
780.00 $
Gardere Wynne Sewell LLP
$ 146,886.50 $
205.91
Fahrendorf, Viloria, Oliphant & Oster, LLP $ 38,801.50 $
TOTALS $ 186,468.00 $
205.91

2
3
4
5

FIRM LEVEL CURRENT CASE TOTALS
FIRM
INVOICED FEES
Foley & Lardner LLP
$ 622,963.50
Law Offices of Frank J. Wright, PLLC
$ 121,620.00
Fahrendorf, Viloria, Oliphant & Oster LLP $
81,250.00
$ 385,624.40
Viloria, Oliphant, Oster & Aman LLP
TOTALS $ 1,211,457.90

6
7

327 CALIFORNIA AVENUE ~ RENO, NEVADA 89509

ATTORNEYS AND
COUNSELORS AT LAW
Office: [phone] Fax: [phone]
P. O. BOX 62 ~ RENO, NEVADA 89504

8
9
10

INVOICED EXPENSES
$
94,087.73
2,233.34
$
$
1,671.65
7,676.62
$
$
105,669.34

OVERALL TOTALS
INVOICED FEES INVOICED EXPENSES
$ 1,397,925.90 $
105,875.25

11
12
13
14
15

Plaintiff Hall contests the purported facts and positions laid out by Defendant Ladera
hereinbelow.
(7) Defendant's statement of any other issues of fact or law deemed to be material;

VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

16 Ladera Did Not Know Penta Had Performed Pre-Construction Work, But Hall Did
17

Ladera contests the purported facts and positions laid out by Hall above. In particular,

18 Ladera reiterates the points in its prior briefing (see ECF Nos. 145, 159, 162, 170-1) that Ladera
19
20
21
22
23

relied on the express contractual representations that no prior work of any kind had been
performed on the property – representations that Hall included but knew were false. Neither
fencing (which Jeff Pickett testified he believed was security fencing) nor anything in the
spreadsheet Hall references put Ladera on notice that Penta had performed pre-loan construction

24 work that would result in a priority lien. The spreadsheet listed the construction work allegedly
25 giving rise to Penta’s lien in a completely different section than the single line item for “Penta-Pre26 Construction” under “Design, Engineering and Permitting.” (ECF No. 139-11.) The costs for
27 the construction work did not match the figure for “Penta-Pre-Construction,” and witness
28
119135131.1

-25-

Case 3:18-cv-00124-RCJ-CSD Document 181 Filed 11/28/22 Page 26 of 39

1 testimony confirmed there was nothing on the spreadsheet itself that would have alerted Ladera
2 to the fact that Penta had performed any of the lien-causing construction work at issue. (ECF
3 No. 145-1, Brandyn Iverson Depo at 140:22-141:16.)
4
5
6

independently investigate the representations being made to Ladera – and that Ladera justifiably
relied on the false representations to its detriment.

8 Ladera Was Entitled to Defend Its Interests in the Bankruptcy Proceedings, and Hall Is
327 CALIFORNIA AVENUE ~ RENO, NEVADA 89509

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Office: [phone] Fax: [phone]
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7

Ladera maintains that the contractual language itself relieved Ladera of any duty to

9 Not Entitled to Attorneys’ Fees Stemming from Those Proceedings
10

11 bankruptcy proceedings. As this Court already acknowledged, “You cannot assert a damage for
12 somebody standing up and appearing on their own behalf.” (June 6, 2022 Hr’g Tr. at 29-30; see
13
14
15
16

VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

Ladera contends that it was entitled to have representation and defend its interests in the

17

also id. at 21-22 (“They [Ladera] had every right to defend their position in the bankruptcy court.
For various reasons, they got excluded…. I’m certainly not going to give you all of your fees every
time you had to stand up and oppose them. They had the right to appear. Even if you had their
mandatory consent to your resolution of settlement, they certainly had the right to stand up

18 without incurring damage fees to you. There’s a causation issue, right? MR. WRIGHT [Hall’s
19 counsel]: I would agree with that. Right.”).)
20

Ladera contends that Hall’s state court action against Ladera that Ladera removed to the

21 bankruptcy court as a related adversary proceeding was totally unnecessary.
22
23
24
25
26

Ladera was

cooperating with Hall and indicated its willingness to further revise the plan it was proposing if
Hall deemed that necessary. But instead of working with Ladera, Hall turned around and filed a
state court lawsuit against Ladera. Hall sought and obtained an ex parte temporary restraining order
against Ladera, only to have the federal bankruptcy judge dissolve the TRO. Hall ended up

27 voluntarily withdrawing its complaint against Ladera. It should not now be able to collect
28 attorneys’ fees for its aggressive actions that were completely unnecessary.
119135131.1

-26-

Case 3:18-cv-00124-RCJ-CSD Document 181 Filed 11/28/22 Page 27 of 39

1

Moreover, had Hall wanted to collect its attorneys’ fees from Ladera for its state court

2 action that became a related adversarial proceeding, it should have filed a motion for attorneys’
3 fees in that action. See Fed. R. Bankr. P. 7054 (incorporating Fed. R. Civ. P. 54(d)(2)(A)-(C) in
4
5
6
7

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Office: [phone] Fax: [phone]
P. O. BOX 62 ~ RENO, NEVADA 89504

8

nontaxable expenses must be made by motion unless the substantive law requires those fees to be
proved at trial as an element of damages.”).
The Intercreditor Agreement provides:
If any lawsuit, reference, arbitration or, other proceeding is commenced which arises
out of, or which relates to this Agreement, including any alleged tort action, the
prevailing party shall be entitled to recover from each other party such sums as the

9
10

court or other party presiding over such action or proceeding may adjudge to
be reasonable attorneys' fees and costs in the action or proceeding, including

11

the allocated costs for services of in-house counsel, in addition to costs and expenses
otherwise allowed by law. Any such attorneys' fees and costs incurred by any party in
enforcing a judgment in its favor under this Agreement shall be recoverable separately
from and in addition to any other amount included in such judgment and shall survive
and not be merged into any such judgment. The obligation to pay such attorneys' fees
and costs is intended to be severable from the other provisions of this Agreement.

12
13
14
15
16

VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

adversary proceedings); Fed. R. Civ. P. 54(d)(2)(A) (“A claim for attorney’s fees and related

17

(Intercreditor Agreement § 18 (emphasis added).) Judge Zive was familiar with the parties and
their arguments, and he was in the best position to determine if Ladera should be responsible for

18 Hall’s attorneys’ fees. Since the bankruptcy court was the court “presiding over such action or
19 proceeding,” it was that court which had to determine what attorneys’ fees were reasonable. Of
20 course, Hall voluntarily dismissed its complaint against Ladera, so it was not a prevailing party
21 entitled to attorneys’ fees. See Makekau v. State, 943 F.3d 1200, 1205 (9th Cir. 2019) (“a voluntary
22
23
24
25
26

dismissal without prejudice … [is] ‘the opposite’ of an adjudication on the merits” and thus
“Plaintiffs are not prevailing parties” entitled to attorneys’ fees). Hall should not now be able to
try to collect the attorneys’ fees it could have, and should have, moved for in the bankruptcy
proceedings.

27 Hall Is Precluded from Presenting Evidence of Its Alleged Damages for Failure to Comply

with Fed. R. Civ. P. 26(a)(1)(A)(iii)

28
119135131.1

-27-

Case 3:18-cv-00124-RCJ-CSD Document 181 Filed 11/28/22 Page 28 of 39

1

Federal Rule of Civil Procedure 26(a) mandates that “a party must, without awaiting a

2 discovery request, provide to the other parties… (iii) a computation of each category of damages
3 claimed by the disclosing party – who must also make available for inspection and copying as
4
5
6
7

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COUNSELORS AT LAW
Office: [phone] Fax: [phone]
P. O. BOX 62 ~ RENO, NEVADA 89504

8

disclosure, on which each computation is based, including materials bearing on the nature and
extent of injuries suffered[.]” Fed. R. Civ. P. 26(a). Hall never did so.
Hall first disclosed the documents in intends to rely on at trial with its First Supplemental

9 Disclosures dated September 19, 2022 – nearly two years after discovery closed and nearly four
10 years after it stated it would produce all documents supporting its damages. Hall should have had
11 all the relevant attorneys’ fees invoices related to the bankruptcy proceedings in its possession well
12 before it filed this current action in March 2018. Yet Hall did not provide any of these invoices
13
14
15
16

VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

under Rule 34 the documents or other evidentiary material, unless privileged or protected from

17

during discovery. And Hall still has not provided a computation of each category of damages.
“While a party may not have all of the information necessary to provide a computation of damages
early in the case, it has a duty to diligently obtain the necessary information and prepare and
provide its damages computation within the discovery period.” Jackson v. United Artists Theatre Cir.,

18 Inc., 278 F.R.D. 586, 593 (D. Nev. 2011). “The plaintiff cannot shift to the defendant the burden
19 of attempting to determine the amount of the plaintiff’s alleged damages.” Id.
20

Ladera still is uncertain if Hall is claiming the total amount of attorneys’ fees from the

21 invoice entries it provided to Ladera after the parties exchanged drafts of the pretrial order. For
22
23
24
25
26
27

example, in the bankruptcy-related attorneys’ fees invoices Hall recently disclosed to Ladera, there
are mixed entries such as “Review Plans filed by Debtor and Ladera.” (E.g., HALL013289.)
Ladera should not be forced to pay Halls’ attorneys’ fees for reviewing plans filed by other parties.
But Hall has not proposed any way to divide the time and fees related to such entries.
Hall still has not provided a computation of what it is purportedly owed under the Senior

28 Loan. To the extent Hall is entitled to any of Ladera’s title insurance proceeds, those proceeds
119135131.1

-28-

Case 3:18-cv-00124-RCJ-CSD Document 181 Filed 11/28/22 Page 29 of 39

1 can only be used to make Hall whole with regard to the Senior Loan (not to pay Hall's attorneys’
2 fees related to Ladera). But Hall has not provided such a computation or supporting documents.
3

30

4
5
6
7

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ATTORNEYS AND
COUNSELORS AT LAW
Office: [phone] Fax: [phone]
P. O. BOX 62 ~ RENO, NEVADA 89504

8

P. 26, evidence of its damages should be excluded under Fed. R. Civ. P. 37(c). See Hoffman v.
Constr. Protective Servs., Inc., 541 F.3d 1175, 1180 (9th Cir. 2008) (affirming preclusion of undisclosed
evidence of damages and explaining that “Rule 37(c)(1) gives teeth to these [disclosure]

9 requirements by forbidding the use at trial of any information required to be disclosed by Rule
10 26(a) that is not properly disclosed,” even “when a litigant’s entire cause of action … [will be]
11 precluded”) (quotation marks and citations omitted).
12 Attorneys’ Fees in this Case Are Premature and Contrary to Fed. R. Civ. P. 54(d)(2)(A)
13
14
15
16

VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

Because Hall has failed to comply with its basic disclosure obligations under Fed. R. Civ.

17

Hall has recently disclosed certain attorneys’ fees invoices for the current litigation. But
this case is not over, and it is premature to consider what amount of attorneys’ fees (if any) Hall
is entitled to in this case. This Court has not yet entered a final judgment or judicially determined
that Hall is the prevailing party.
Moreover, Hall trying to present evidence of its attorneys’ fees incurred in this case at trial

18

19 is contrary to Fed. R. Civ. P. 54(d)(2)(A), which provides that a “claim for attorney's fees and
20 related nontaxable expenses must be made by motion unless the substantive law requires those
21 fees to be proved at trial as an element of damages.” Fed. R. Civ. P. 54(d)(2)(A) (emphasis added).
22

The Intercreditor Agreement provides for attorneys’ fees for this case only if Hall is determined

23
24
30

On the afternoon of October 11, 2022 – the day this pretrial order was due – Hall sent, for the first time, a

25 “summary” of its legal invoices with purported totals it was seeking in attorneys’ fees. However, there is no
explanation of how these amounts were computed or whether they include ALL entries from this case and the

26 bankruptcy invoice entries provided (even though several of the entries include time directed at other parties’ filings
and/or unsuccessful tasks). After numerous exchanges of the draft pretrial order, Hall also inserted – for the first

27 time in the draft of the pretrial order sent to Ladera’s counsel at 4:30pm on October 11, 2022 – the specific amount
of $8,610,279.02 that it claimed it is still due on the loan. However, Hall has not provided any computation or

28 explanation of how it came up with this amount, much less documentation to substantiate it.
119135131.1

-29-

Case 3:18-cv-00124-RCJ-CSD Document 181 Filed 11/28/22 Page 30 of 39

1 to be the prevailing party – and only those amounts that this Court adjudges to be reasonable.
2 Moreover, Hall must “state the amount sought or provide a fair estimate of it,” Fed. R. Civ. P.
3 54(d)(2)(B)(iii) – which Hall has not yet done. If and when Hall moves for attorneys’ fees in this
4
5
6

case, Ladera must be provided with an opportunity to respond on the merits and point out the
numerous time entries that are duplicative, excessive, and otherwise unreasonable.

If Any Attorneys’ Fees Are Allowed, Ladera Should Have an Opportunity to Brief the

7 Unreasonableness of Specific Entries
327 CALIFORNIA AVENUE ~ RENO, NEVADA 89509

ATTORNEYS AND
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Office: [phone] Fax: [phone]
P. O. BOX 62 ~ RENO, NEVADA 89504

8
9
10
11
12
13

Hall should not be permitted to recover attorneys’ fees related to the bankruptcy
proceedings for the reasons described above – (1) Hall did not move for attorney’s fees in the
bankruptcy action, and (2) Hall did not disclose prior to discovery either a computation of its
alleged damages or the invoices on which those damages are allegedly based. And for the reasons
described above, any claimed attorneys’ fees for the current action are premature.
The untimely disclosure of the invoices on which Hall relies has greatly prejudiced Ladera.

14

15 If Hall had timely disclosed the bankruptcy-related invoices, for example, Ladera could have

VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

16 questioned witnesses about the necessity and reasonableness of the parties’ actions during the
17 bankruptcy proceedings.
18
19
20
21
22

However, if this Court does allow evidence of Hall’s attorneys’ fees – related to the
bankruptcy proceedings or the current action – Ladera requests the opportunity to submit briefing
to substantively challenge specific entries. Throughout the bankruptcy-related invoices and the
invoices for the current action, there are numerous entries for tasks and fees that Hall should not

23 be permitted to recover from Ladera. For example (and this is just a small sampling):
24
25

•

There are numerous entries in the bankruptcy invoices for mixed tasks, such as “Review
and revise objections to Penta and Ladera Plans” or “Revise and edit the draft disclosure

26
27
28
119135131.1

-30-

Case 3:18-cv-00124-RCJ-CSD Document 181 Filed 11/28/22 Page 31 of 39

1

statement31 objection and the motion to shorten discovery deadlines and discuss same;

2

review draft subpoenas and discuss proposed disclosure statement discovery; review

3

various additional pleadings including the Ladera omnibus reply and discuss same.”

4

(HALL013317-19.) Obviously, fees for reviewing other parties’ filings or working on

5

tasks unrelated to Ladera should not be charged to Ladera.

6

327 CALIFORNIA AVENUE ~ RENO, NEVADA 89509

ATTORNEYS AND
COUNSELORS AT LAW
Office: [phone] Fax: [phone]
P. O. BOX 62 ~ RENO, NEVADA 89504

7

•

8

the current action, including multiple attorneys billing for the same task or conference.

9

Hall may have chosen to pay for such duplicative billing, but it is unreasonable to charge

10
11

such amounts to Ladera.
•

12

There are several unreasonable and excessive entries and rates, including attorneys billing
$700 per hour and attorneys billing for travel time. (E.g., HALL013319 (Frank Wright

13

charging for 7 hours of “Travel to Reno, NV for hearings on July 25, 2017”).) Not only

14

should Ladera should not be responsible for travel time – this is not attorney work; but

15

also Mr. Wright would have had to travel for bankruptcy hearings involving other parties

16
VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

There are several duplicative tasks in both the bankruptcy invoices and the invoices for

17

and their disclosure statement hearings regardless of what Ladera did or did not file. This

18

is an example of the “causation” issues previously noted by this Court. Ladera did not

19

cause Hall to incur these fees, and Hall should not be able to recover such fees as claimed

20

damages against Ladera.

21
22
23
24

•

There are numerous entries for multiple attorneys getting up to speed on the case,
reviewing background materials, or reviewing the Intercreditor Agreement. Ladera
should not be charged with such repetitive and duplicitous fees.

25
26
27
31
It is unclear whose draft disclosure statement is at issue, but from the surrounding entries, it seems probable that it
is
Penta’s disclosure statement.
28

119135131.1

-31-

Case 3:18-cv-00124-RCJ-CSD Document 181 Filed 11/28/22 Page 32 of 39

1
2
3
4
5
6
7

•

For the entries on the current case, there are numerous entries for unsuccessful tasks, such
as opposing Ladera’s motion to dismiss (which was granted) or for drafting five summary
judgment motions that were stricken and which Hall then had to rewrite and consolidate
into one motion.

Ladera should not have to pay for Hall’s strategic errors and

unsuccessful positions.
If this Court allows any evidence of attorneys’ fees (which it should not), Ladera requests an

327 CALIFORNIA AVENUE ~ RENO, NEVADA 89509

ATTORNEYS AND
COUNSELORS AT LAW
Office: [phone] Fax: [phone]
P. O. BOX 62 ~ RENO, NEVADA 89504

8 opportunity to brief all the instances of unreasonable time entries and fees for which Ladera
9 should not be responsible.
10

(8) Lists or schedules of all exhibits that will be offered in evidence by the parties at
the trial. The lists or schedules must describe the exhibits sufficiently for ready
11 identification and:
12
13
14
15

(A) Identify the exhibits the parties agree can be admitted at trial; and
LADERA
EXHIBIT NO.
Ladera 1
Ladera 2

VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

16
17
18
19

Ladera 3
Ladera 4
Ladera 5

20
21

Ladera 6

22
23

Ladera 7

24
25
26
27

Ladera 8
Ladera 9
Ladera 10

28
119135131.1

DESCRIPTION
Intercreditor Agreement
Order Terminating Temporary Restraining Order,
8/25/17
Stipulation to Extend Deadline to File Response or
Answer to Complaint, 9/5/17
Hall’s Notice of Voluntary Dismissal, 9/28/17
Joint Motion to Approve Compromise and Settlement
Agreement and Dismissal Under FRCP 7041, 12/15/17
Order Granting Joint Motion to Approve Compromise
and Settlement Agreement and Dismissal Under FRBP
7041
11/12/18 Plaintiff/Counter—Defendant Hall CA-NV,
LLC’s Amended Response to Defendant/CounterClaimant Ladera Development, LLC’s First Set of
Requests for Production of Documents
1/30/19 Plaintiff/Counter—Defendant Hall CA-NV,
LLC’s Response to Defendant/Counter-Claimant Ladera
Development, LLC’s First Set of Interrogatories
6/15/18 Plaintiff’s Rule 26(a) Pre-Discovery Disclosures
of Witnesses and Documents
9/19/22 Hall CA-NV, LLC’s First Supplemental
Disclosures Pursuant to FRCP 26(e)
-32-

BATES-RANGE
OR ECF NO.
HALL01045
Case 17-05039gwz, ECF No. 13
Case 17-05039gwz, ECF No. 14
Case 17-05039gwz, ECF No. 16
Case 16-51282gwz, ECF No.
1044
Case 16-51282gwz, ECF No.
1074
N/A

N/A
N/A
N/A

Case 3:18-cv-00124-RCJ-CSD Document 181 Filed 11/28/22 Page 33 of 39

1
2
3
4

Ladera 11
Ladera 12
Ladera 13
Ladera 14

Email Chain “RE: New-Cal Neva Lodge, LLC 16051282GWZ,” 12/08/17
Email Chain “RE: Global Term Sheet,” 11/28/1712/04/17
Email Chain “RE: Motion dismiss- Adversary,”
12/22/17-12/23/17
Transcript of 8/24/17 Bankruptcy Hearing

HALL_000178
HALL_000435
HALL_000252
N/A

5
6
7

(B) List those exhibits to which objection is made and state the grounds for the
objection. Stipulations on admissibility, authenticity, and/or identification of
documents should be made whenever possible;

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ATTORNEYS AND
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8
9
10
11
12

Hall 1
Hall 2

13
14

Hall 3

15
16

VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

HALL
EXHIBIT NO.

17
18
19

Hall 4
Hall 5
Hall 6

20
21

Hall 7

22
23

Hall 8

24
25

Hall 9

26
27

Hall 10

28
119135131.1

DESCRIPTION
Disclosure Statement for Ladera Development, LLC's
Plan of Liquidation for New Cal-Neva Lodge, LLC Dated
March 21, 2017 [Bank. Dkt. No. 490]
Ladera Development, LLC's Plan of Reorganization for
Cal Neva Lodge, LLC and New Cal-Neva Lodge, LLC
Dated March 21, 2017 [Bank. Dkt. No. 491]
Disclosure Statement for Ladera Development, LLC's
Plan of Liquidation for New Cal-Neva Lodge, LLC Dated
July 5, 2017 [Bank. Dkt. No. 690]
Ladera Development, LLC's Plan of Liquidation for New
Cal-Neva Lodge, LLC Dated July 5, 2017 [Bank. Dkt. No.
689]
Amended Disclosure Statement for Ladera Development,
LLC's Amended Plan of Liquidation for New Cal-Neva
Lodge, LLC Dated July 5, 2017 [Bank. Dkt. No. 737]
Ladera Development, LLC's Amended Plan of
Liquidation for New Cal-Neva Lodge, LLC Dated July 5,
2017 [Bank. Dkt. No. 738]
Plan Supplement to Ladera Development, LLC's
Amended Plan of Liquidation for New Cal-Neva Lodge,
LLC Dated July 5, 2017 [Bank. Dkt. No. 740]
Ladera Development, LLC's Second Amended Plan of
Liquidation for New Cal-Neva Lodge, LLC Dated July 5,
2017 [Bank. Dkt. No. 754]
Second Amended Disclosure Statement for Ladera
Development, LLC's Second Amended Plan of
Liquidation for New Cal-Neva Lodge, LLC Dated July 5,
2017 [Bank. Dkt. No. 755]
Ladera Development, LLC's Limited Response to Joint
Motion to Approve Compromise and Settlement
Agreement and Dismissal Under FRCP 7041 [Bank. Dkt.
No. 1068]
-33-

BATES-RANGE
HALL010818HALL010895
HALL010896HALL010960
HALL010961HALL011095
HALL011096HALL011180
HALL011181HALL011265
HALL011266HALL011401
HALL011402HALL011454
HALL011455HALL011531
HALL011532HALL011618
HALL011619HALL011620

Case 3:18-cv-00124-RCJ-CSD Document 181 Filed 11/28/22 Page 34 of 39

1
2

Hall 11

3
4

Hall 12

5
6

Hall 13

7

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8
9
10

Hall 15

11

Hall 16

12

Hall 17

13

Hall 18

14

Hall 19

15
16

VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

Hall 14

Hall 20

17

Hall 21

18

Hall 22

19

Hall 23

20

Hall 24

21
22

Hall 25

23
24

Hall 26

25
26

Hall 27

Objection to Disclosure Statement for Ladera
Development, LLC's Plan of Reorganization for Cal Neva
Lodge, LLC and New Cal-Neva Lodge, LLC Dated
March 31, 2017 [Bank. Dkt. No. 521]
Supplemental Objection to Disclosure Statement for
Ladera Development, LLC's Plan of Reorganization for
Cal Neva Lodge, LLC and New Cal-Neva Lodge, LLC
Dated March 31, 2017 [Bank. Dkt. No. 635]
Objection to Disclosure Statement for Ladera
Development, LLC's Plan of Liquidation for Cal-Neva
Lodge, LLC Dated July 5, 2017 [Bank. Dkt. No. 713]
Objection to Second Amended Disclosure Statement for
Ladera Development, LLC's Second Amended Plan of
Liquidation for Cal-Neva Lodge, LLC Dated July 5, 2017
[Bank. Dkt. No. 779]
Hall CA-NV, LLC's Ex Parte Application for Temporary
Restraining Order and Motion for Preliminary Injunction
Hall CA-NV, LLC's Original Complaint
Declaration of Michael J. Jaynes
Declaration of Frank J. Wright
Temporary Restraining Order and Order Setting
Preliminary Injunction Hearing
Notice of Removal to Federal Court
August 11, 2022, Letter From Hall CA-NV, LLC Counsel
to Old Republic
August 18, 2022, Response Letter From Counsel for Old
Republic to Hall CA-NV, LLC Counsel
March 2017 Invoice of Coats Rose to Hall
May 2017 - January 2018 Invoices of Gardere Wynne
Sewell, LLP to Hall
July 2017, August 2017, January 2018, and February 2018
Invoices of Gardere Wynne Sewell LLP to Hall
June 2017, July 2017, August 2017, September 2017 and
December 2018 Invoices of Fahrendorf, Viloria, Oliphant
& Oster, LLP to Hall
March 2018 - May 2020 Invoices of Foley Lardner LLP to
Hall

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119135131.1

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HALL011621HALL011625
HALL011626HALL011632
HALL011633HALL011680
HALL011681HALL011728
HALL011729HALL012203
HALL012204HALL012673
HALL012674HALL012818
HALL012819HALL013247
HALL013248HALL013254
HALL013255HALL013263
HALL013264HALL013283
HALL013284HALL013285
HALL013286HALL013292
HALL013293HALL013393
HALL013394HALL013411
HALL013412HALL013462
HALL013463HALL013632

Case 3:18-cv-00124-RCJ-CSD Document 181 Filed 11/28/22 Page 35 of 39

Hall 28

July 2020 - August 2022 Invoices of Law Office of Frank
J. Wright, PLLC to Hall

HALL013633HALL013700

Hall 29

March 2018 - December 2018 Invoices of Fahrendorf,
Viloria, Oliphant & Oster, LLP to Hall

HALL013701HALL013739

5

Hall 30

January 2019 - August 2022 Invoices of Viloria, Oliphant,
Oster & Aman, LLP to Hall

HALL013740HALL013876

6

Hall 31

Invoice Summary

n/a

1
2
3
4

327 CALIFORNIA AVENUE ~ RENO, NEVADA 89509

VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

ATTORNEYS AND
COUNSELORS AT LAW
Office: [phone] Fax: [phone]
P. O. BOX 62 ~ RENO, NEVADA 89504

7
8

1) Ladera objects to Hall 1-31 as evidence of purported damages because Hall never provided a
computation of its alleged damages as required by Fed. R. Civ. P. 26(a)(1)(A)(iii).

9

2) Ladera objects to Hall 21-22 as hearsay.

10
11
12
13

3) Ladera objects to Hall 23-31 because they were not provided prior to the close of discovery.
4) Ladera objects to Hall 31 because Ladera saw it for the first time on the afternoon of October
11, 2022 – the day this pretrial order was due. Ladera objects to Hall 31 as it is based on
hearsay and time entries that should not be charged to Ladera. Moreover, Ladera has had no
opportunity to assess its accuracy.

14

(9) A statement by each party of whether they intend to present evidence in electronic
format to jurors for purposes of jury deliberations. Parties should consult the court's website
15 or contact the assigned judge's courtroom administrator for instructions on how to prepare
16 evidence in electronic format and other requirements;
17

Not Applicable; No Jury Demand.

18

(10) A statement by each party identifying any depositions intended to be offered at the
trial, except for impeachment purposes, and designating the portions of the deposition to be
19 offered;
20
21
22

Ladera intends to offer the 9/3/2019 Deposition Transcript of Eric Goldberg, specifically
pgs. 33-70, 74-77.

(11) A statement of the objections, and the grounds for them, to deposition testimony the
23 opposing party has designated;
24

None.

25

(12) A list of witnesses, with their addresses, who may be called at the trial. The list may
not
include witnesses whose identities were not, but should have been, revealed in response
26
to permitted discovery unless the court, for good cause and on such conditions as are just,
27 orders otherwise; and
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Case 3:18-cv-00124-RCJ-CSD Document 181 Filed 11/28/22 Page 36 of 39

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2
3
4
5
6
7

327 CALIFORNIA AVENUE ~ RENO, NEVADA 89509

ATTORNEYS AND
COUNSELORS AT LAW
Office: [phone] Fax: [phone]
P. O. BOX 62 ~ RENO, NEVADA 89504

8
9
10
11
12

Michael Jaynes, Former President of Hall Structured Finance
c/o Counsel for Hall CA-NV, LLC
Frank J. Wright, Esq.
12222 Merit Drive, Suite 1700
Dallas, TX 75251-2269
Nathan J. Aman, Esq.
P.O. Box 3677
Reno, Nevada 89505
James Pickett
c/o Counsel for Ladera
Jeffery Pickett
c/o Counsel for Ladera
(13) A list of motions in limine filed, if any.
Hall has not yet filed, but intends to file, at least the following motion in limine:

13

1) Motion in limine to exclude Ladera’s evidence on matters already decided by the summary

14

judgment orders of this Court (ECF Nos. 157 and 171) to prevent Ladera from improperly

15

re-litigating the findings and holdings of this Court determined by those orders.

VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

16
17
18
19
20
21
22

Ladera has not yet filed, but intends to file, at least the following motions in limine:
1) Motion in limine to exclude all evidence of Hall’s damages for failure to provide a computation
of each category of damages as mandated by Fed. R. Civ. P. 26(a)(iii) and for failure to provide
or allow inspection of the documents supporting its claimed damages prior to the close of
discovery.

23

2) Motion in limine to exclude evidence of how much Hall is allegedly owed on its Senior Loan

24

since Hall did not provide such a computation prior to the close of discovery, and to clarify

25

that any title insurance proceeds obtained from Ladera can be used only to satisfy Borrower’s

26
27

indebtedness to Hall – not to pay Hall’s alleged attorneys’ fees incurred in connection with
Ladera.

28
119135131.1

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Case 3:18-cv-00124-RCJ-CSD Document 181 Filed 11/28/22 Page 37 of 39

1

3) Motion in limine to exclude evidence of Hall’s attorneys’ fees incurred in the bankruptcy

2

proceedings because Hall should have moved for attorneys’ fees in that action rather than bring

3

a separate lawsuit claiming those attorneys’ fees as damages.

4
5
6

4) Motion in limine to exclude evidence of Hall’s attorneys’ fees in this case as premature and
contrary to Fed. R. Civ. P. 54(d)(2)(A).
OFFERED TRIAL DATES

327 CALIFORNIA AVENUE ~ RENO, NEVADA 89509

ATTORNEYS AND
COUNSELORS AT LAW
Office: [phone] Fax: [phone]
P. O. BOX 62 ~ RENO, NEVADA 89504

7
8

The attorneys offer these three trial dates:

9

January 10, 2022

10

January 24, 2022

It is expressly understood by the undersigned that the court will set the trial of this matter on

11 one of the agreed-upon dates if possible; if not, the trial will be set at the convenience of the court’s
12 calendar.
TIME OF TRIAL

13
14

The parties estimate that the trial will take a total of 3 days.

15
16

VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

January 17, 2022

DATED this 11th day of October, 2022.

17

VILORIA, OLIPHANT,
OSTER & AMAN L.L.P.

18

By: /s/ Nathan J. Aman, Esq.
Nathan J. Aman, Esq.
Nevada Bar No. 8354
P.O. Box 62
Reno, Nevada 89504
[phone]
[phone] - fax
Email: [e-mail]

19
20
21
22
23

and

24
25

LAW OFFICES OF
FRANK J. WRIGHT, PLLC

26

Frank J. Wright, Esq.
TX Bar No. 22028800
(pro hac vice)

27
28
119135131.1

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Case 3:18-cv-00124-RCJ-CSD Document 181 Filed 11/28/22 Page 38 of 39

12222 Merit Drive, Suite 1700
Dallas, TX 75251-2269
Telephone [phone]
Email: [e-mail]

1
2
3
4
5

Counsel for HALL CA-NV, LLC
DATED this 11th day of October, 2022.

6

LEWIS ROCA ROTHGERBER
CHRISTIE LLP

7

327 CALIFORNIA AVENUE ~ RENO, NEVADA 89509

ATTORNEYS AND
COUNSELORS AT LAW
Office: [phone] Fax: [phone]
P. O. BOX 62 ~ RENO, NEVADA 89504

8

By: /s/ Dale Kotchka-Alanes________
Dale Kotchka-Alanes, Esq.
Nevada Bar No. 13168
Brian D. Blakley, Esq.
Nevada Bar No. 13074
3993 Howard Hughes Parkway, Suite 600
Las Vegas, Nevada 89169
[phone]
Email: [e-mail]
[e-mail]

9
10
11
12
13
14

Counsel for LADERA DEVELOPMENT,
LLC

15

VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

16
17
18
19

ACTION BY THE COURT
This case is set for bench trial on the fixed/stacked calendar on Monday, May 22,
2023, at 8:30 a.m. and calendar call will be held on Monday, May 1, 2023, at 10:00 a.m. in Reno
Courtroom to be determined before District Judge Robert C. Jones.

20
_________________________________
UNITED STATES DISTRICT JUDGE

21
22

November 28, 2022
DATED:__________________________

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Case 3:18-cv-00124-RCJ-CSD Document 181 Filed 11/28/22 Page 39 of 39

1

CERTIFICATE OF SERVICE

2

Pursuant to NRCP 5(b), I certify that I am an employee of the law firm of LEWIS ROCA

3 ROTHGERBER CHRISTIE LLP, and that on the date shown below, I caused service of a true and
4 correct copy of the attached:
5
6
7

327 CALIFORNIA AVENUE ~ RENO, NEVADA 89509

ATTORNEYS AND
COUNSELORS AT LAW
Office: [phone] Fax: [phone]
P. O. BOX 62 ~ RENO, NEVADA 89504

8
9
10
11
12
13
14

to be completed by:
X

electronic service upon electronically filing the within document with CM/ECF system.

addressed to:
Frank J. Wright, Esq.
(by pro hac vice)
LAW OFFICES OF FRANK WRIGHT,
PLLC
2323 Ross Ave., Suite 730
Dallas, TX 75201
Tel: [phone]
Email: [e-mail]

Nathan J. Aman, Esq.
VILORIA, OLIPHANT & OSTER &
AMAN LLP
P.O . Box 62
Reno, NV 89504
Tel: [phone]
Email: [e-mail]
Attorneys for Plaintiff/Counterdefendant

Attorneys for Plaintiff/Counterdefendant

15
16

VILORIA,
OLIPHANT,
OSTER &
AMAN L.L.P.

(PROPOSED) JOINT PRETRIAL ORDER

DATED this 11th day of October, 2022.

17
/s/ Jessie M. Helm
An employee of Lewis Roca Rothgerber Christie LLP

18
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-39-