LIVE UPDATES: Double D Ranch, Toys R Us back in court - KLTV.com - Tyler, Longview, Jacksonville |ETX News

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LIVE UPDATES: Double D Ranch, Toys R Us back in court

TYLER, TX (KLTV) - Double D Ranch and Toys are Us are meeting again today in a Tyler court courtroom in an attempt to finally put their month long dispute to rest.

Toys R Us was granted a restraining order to keep the business from operating in their shopping complex in Tyler and last week that restraining order was extended.

A more permanent decision is expected in court today.

KLTV reporter Melanie Torre is in the courtroom and just as we did last week, we will bring you live updates as the proceeding get underway:

The hearing is just now getting underway.

Plaintiff representation: Melissa Kingston. Defendant representation: Blake Armstrong and Robert Davis.

TRU swore in a new witness.

-TRU witness 1 (Sullivan) is back on the stand. Sullivan says she has 10 years employment with TRU and she is employed by TRU and handles real estate matters for TRU, 2005 REI LLC with guidance from TRU.

-DD Ranch asks Sullivan if any of the correspondence emails between TRU and DD Ranch were sent to or from her. She says not electronically but she had seen them during the review of the request to change the restaurant from El Chico.

-DD ranch asks if Sullivan has any first hand knowledge of the conversations between Jennifer Sophia (TRU) and EL Chico Restaurants. Sullivan says no.

-"For any of the material alterations that have occurred in the past you have no personal knowledge of the history or what was said between the two parties?" -DD Ranch;

Sullivan replied, "correct"

DD: Does TRU sell items in its store that are only for people over the age of 17?

TRU: No

DD: Are you aware TRU sells video games with nudity only to people over 17?

TRU: We sell products for children.

TRU: We do not sell adult only products

{DD approaches the bench with an item sold in TRU in Tyler labeled for 18+}

DD: are the mothers and grandmothers buying these items for their children that are labeled 18+?

TRU: I don't handle marketing.

DD: You're not only selling to children, are you?

TRU: We're selling toys to consumers.

DD: please turn to exhibit number 12. Look at the first, second and third page. Do you recognize these from your website?

TRU: I recognize that logo.

{DD takes TRU through advertisements of items sold from Toys R Us's website}

DD: Do you recognize this being from the toys r us website?

TRU: I don't know if it's from the website

DD: When you were reviewing your website that...

DD: the "m" rated video games sold by TRU are sold here in Tyler?

TRU: Yes.

DD: Are you aware those videos contain graphic sexual content.

TRU: I believe they do.

DD: Are you aware TRU has received numerous complaints and negative newspaper articles about the sale of those items?

*Toys representation  objection: None of those complaints have come from Tyler or the state of Texas.*

{DD argues this is also harmful to their reputation.}

DD: In addition to being sexually specific they also contain graphic violence, correct?

TRU: I've never played them.

DD: would you agree that the items that you sell in your store makes up part of your reputation as a store?

TRU: Yes.

Arguments pertaining to the argument of DD Operation: 

DD: "Coming soon" would indicate that they had not yet opened, correct?

TRU:  Could be

DD: Am I correct or am I not correct?

TRU: Correct.

{DD reads lease section 3.01 (c): "tenant shall initially open and operate under the name El Chico free the expiration of the first two lease years, tenant may operate under a different trade name after obtaining landlord's prior written consent, which shall not be unreasonable withheld or delayed"} 

{DD rep says because they have not conducted business yet, have not operated, and are requesting this written consent then they have not violated this section of the lease.}

{TRU witness says they have operated by hiring employees, DD ranch defines operating as sale of food or drink.}

{TRU witness says, if that is DD ranch's definition then no, they have not operated yet.} 

DD: Changing the trade name requires written consent, correct?

TRU: Correct.

DD: Does the lease say material alterations require written consent?

{Lease excerpt 10.02: Tenant shall not make any Material Alterations to the Premises or any part thereof without Landlord's prior consent}

DD: Does this say written consent?

Toys: No. 

{DD Shows the court a document pertaining to business alterations Approved as noted 6/30/11 Signature of project manager for toys r us shown on documents and an email concerning the conditional remodel plans.} 

{DD ranch asks if permission for 1996 remodel was given with verbal consent. Sullivan does not know.} 

DD: Where in the contract does it require that the defendants in this case coordinate approval for painting, changing fixtures, etc?

*Toys witness reviews lease contract for some time and says she cannot find the clause she is looking for*

{Toys R Us video games cited by DD representation: Call of Duty, Modern Warfare 2, Grand Theft Auto 4 DD gives witness a copy of GTAuto 4 and asks to admit those into evidence.}

*TRU objects- Irrelevant to the dispute that they have breached the lease not about the line TRU sells, DD counter argues: TRU has specifically stated in pleading and evidence damage to their reputation by DD ranch girls wearing their uniform, DD ranch would like to bring up the items TRU sells in their store. Judge over rules TRU objection.*

DD representation: "Blood and gore, intense violence, nudity, sexual content and use of drugs and alcohol" This is the label on a game sold here in Tyler, Texas?

TRU: Yes.

DD: Does it say semi nude?

DD: Would it surprise you to learn that on this video you can purchase a prostitute, have sex with a prostitute, kill the prostitute and get your money back?

Toys: No.

DD: Again, does Toys R Us market to children or people who want to watch m rated video games?

Toys: We market toys to children.

DD: Are you aware that to provide a sexually simulated or sexually oriented experience that requires a sexually oriented business permit?

DD: Have you ever made any inquiries on how Double D's will operate?

Toys: I never spoke to them, no.

DD: Would it surprise you to know DD provides an alternate uniform for the waitstaff to wear?

Toys: I'm sure they do.

DD: Did you ever inquire about what the waitstaff in Tyler Texas would be wearing?

TRU: No.

DD: Do you remember testifying under oath that the defendant does not have a children's menu?

Toys: Yes.

DD: Would it surprise you to learn that they do?

Toys: Yes. 

DD: Did you know on Sundays at the Bossier City restaurant all children under 12 are allowed to eat free? Did you know the waitstaff must dress into the uniforms inside locker rooms? Did you ever inquire if the waitstaff would be allowed to leave the premises in the uniform? Did you inquire if security would be provided? Did you inquire if any drunken bar bawls had occurred at the DD's in Bossier City?

Court has recessed and will be back on record at 1:15 pm.

Court is back in session:

Sullivan back on witness stand for TRU.

TRU takes questioning over (witness still Sullivan)

Toys Representation: Have you reviewed all the links on the defendants DD ranch website?

TSR: Yes

Toys rep: In looking at that website did you see any kids menu Toys witness: No Toys rep: Did you see a beverage menu Toys witness: I did Toys rep: Did you see a food menu that did not include kids menu Toys wit: Yes Toys rep: Did you ever see anything mentioned regarding a program where kids eat free or regarding to a kids menu?

TRU: No

Toys rep: Did you ever see uniforms other than the ones in exhibit 9?

TRU wit: No

{Toys rep asks toys witness if there was any reason you were not involved in earlier decisions regarding the remodeling Witness says she was on vacation.}

Toys Representation: Subsection of the lease states the landlord may sell X rated videos if they wish to Toys witness: In this instance we do not sell x rated video Toys rep: You do sell video games rated m?

{Toys r us witness says the sale of these videos is in align with toys r Us's objective and they sell the same things as their competitors Toys rep: Has the toys r us in the Tyler area received a complaint about the sale of m rated video?}

TRU: Not that I know of. 

Toys Rep:Are you still receiving complaints about the double d ranch in Tyler?

TRU: Yes. There are objections to double d ranch being able to operate at the location... Indicating it'll increase accidents at al already bust traffic intersection asking us to not allow this. 

TRU: This is an adult themed sports bar or restaurant. It is not a restaurant we see to be frequented by our patrons. 

TRU: Many indicated that they'll shop target, Walmart and elsewhere. 

{Plaintiff representation shows the court a drawing of the el Chico sign that can be installed according to the lease Toys rep: Has this lease been amended to allow new signs?}

TRU: It has not.

Toys rep: What's that process?

TRU: They'd have to submit to us details.. Sign.. Color...

Recess to allow Sullivan to review the Toys R Us website.

DD questioning Sullivan again.

DD: Ma'am have you ever been to a Hooters?

TRU: No

DD: Do you know what that is?

TRU: yes

DD: Was there a Hooters around when the lease came to be?

TRU: Yes, I would believe so

DD representation says in relation to Grand Theft Auto ESRB (a video game rating organization) in this case in regards to the items you sell on your property "several sexual references and innuendos."

DD rep shows ESRB Duke Nuke 'em Forever. ESRB describes sexual acts within the video.

DD: If you rely on ESRB ratings, do you rely on what ESRB has to say about the products?

TRU: Yes

Now calling Toys R Us witness number two Jennifer Sophia, asset manager for Toys R Us.

Sophia Handles questions regarding lease issues; Handled the processing of plans to remodel El Chico Tyler store

 Witness reviewing request dated June 9, sent via Fed Ex, received around June 11th; request was a letter with architectural plans for the remodel of the existing El Chico restaurant.

According to Sophia's notes, plans to replace the roof, one VAC(?) unit and no electrical work.

Toys R Us witness (Sophia) says she was never told there were plans to change the concept or use of the restaurant.

Sophia says restaurant indicated as a remodel not a re-concept because they paper work says El Chico witness says words "El Chico 28" were on the remodel plans.

Addressed to Sophia at Toys R Us, "Changes actually being proposed.."

Sophia says adding a patio area, reconfiguring interior cabana bar area, remodeling the exterior and roof shingles.

Sophia says she did not receive any inquires about changing signage or trade name.

Toys R Us rep: After you got conditional approval from the design team, what's the next step?

Toys R Us witness Sophia says, "If the plans are found to be acceptable, a letter is drafted and send to the tenant.

Toys R Us rep: Was a letter drafted in this case?

Toys R Us witness: No.

Toys R Us rep: What are the key components of your consent letter?

Toys R Us witness: Any time I grant consent it is subject to the terms of the lease...

Toys R US witness : A consent letter would request information from the tenant, the construction manager, rules about interrupting utility services, construction during a holiday, mandating where they park their constriction equipment, etc.

 Toys R Us representative asks if it is Toys R Us' practice to grant oral consent for requests regarding signage and concept change. Sophia says no oral consents are granted.

 Sophia says according to the lease, every notice, approval must be in writing and received by US mail.

 Sophia says any request would have had to be written consent and would have had to be issued.

Toys R Us representative: Did you ever tell the defendants orally that their request to remodel was granted?

Toys R Us witness: No. After receiving plans I left a voicemail that I would be issuing conditional consent but needed to talk to him because there were some unanswered questions

Sophia says she never got DD or El Chico management on the phone to answer these questions.

Keep checking back to KLTV.com for the latest update on the court proceedings this morning.

Sophia: Typically Toys R Us does not see this type of use as a complimentary co-tenant of our store ..bars, liquor stores, anything that would not be complimentary. So something like that may not be approved .

Witness addresses a photo of the Pylon sign with the Hooters sign underneath. 

Sophia: I don't recall where the complaint came from. It was determined that at this property that Toys R Us was in agreement with a neighboring property owner and they could install a sign on the Toys R Us sign.

We later learned that the land where the Hooters was was not the land that had permission to use space available on the sign.

We immediately demanded that Hooters remove the sign and it was removed within 30 days."  

DD rep: On June 13 you said they could move forward with construction remodeling.

Toys R Us rep: That is not true.

DD: You're telling this court today you did not give Mr. Vanover (?) verbal consent to go ahead with these changes?

Toys R Us rep: Correct.

 Toys R Us witness: I told him we were reviewing his plans from a design perspective. I believe Mr. Vanover (?) started the renovations without our consent.

I believe he asked for our consent but did not receive our consent.

(Dates DD says Sophia and Vanover conversed regarding the remodel: June 9, June 22, and June 29/30.)

DD representation says DD logo on the documentation submitted June 9, and it says "remodel and re-concept" on every page.

DD rep: Did you not see that?

Toys R Us witness: Maybe I did, maybe I didn't.

 DD: You're saying you had not given Mr. Vanover consent?

Toys R Us: No

DD: Don't you think it would be a little unreasonable to make someone wait over 30 days to give them consent?

Toys R US:  No.

 DD: What is a reasonable time frame?

Toys R Us: 30-45 days.

In an email Sophia said until she received a complaint from Jennifer Alden, there was no indication El Chico was changing the use or name.

DD representation: You're saying that even though they put "remodel and reconcept" on every page of these plans?

Toys R Us: It's the tenant's job to tell us.

DD: Are you saying this didn't say that with "remodel & reconcept" and signing it "DD ranch"?

Toys R Us: There was no indication to me.

Witness reads lease excerpt containing the prohibition of "go-go dancing and nude or semi- nude entertainment"

DD: Do you believe there will be go-go dancing on the property?

Toys R Us: No.

DD: Do you believe there will be nude or semi-nude entertainment?

Toys R Us: There will be semi-nude waitstaff.

DD: Is that your opinion or a definition?

Toys R Us: I dont have a definition.

DD: Do you think the restaurant will be doing other things than serving food?

Toys R US: I don't know.

DD: So you really have no idea what will be going on there, do you?

DD: Did Mr. Vanover call you on or about July 5 or 6?

Toys R Us: I had a voicemail from him.

DD: Did you call him back?

Toys R Us: No.

DD: Why?

Toys R Us: Because we were already in litigation with him.

DD: The cease and desist letter wasn't delivered until mid July, but you believed on July 5, 6 or 7th you were in litigation?

Toys R Us: I don't know the dates.

 Toys R Us: I told Mr. Vanover that the plans did not include a sign package and that any approvals would be given on terms and conditions of the lease.

 Toys R Us: Most of the time, tenants do not start the remodel until they have received written consent from us

 DD: Exhibit 23 says the design review board approved the plans on June 30. You made it clear you do not approve the signs. You approvedmodifications to the building.

Toys R Us: The email you're referring to was an internal email from our design reviwer who said she was granting approval with conditions and comments.

 DD: On June 30 you had internally approved the changes?

Toys R Us: With conditions.

 DD: He shouldn't have begun remodeling with a verbal "ok"?

Toys R Us: Not in my opinion.

DD: So in your opinion he shouldn't take you at your word?

Toys R Us: That's not my word.

Toys R Us is calling witness number 3, Ricky Lee Willborn, Tyler Toys R Us Manager for 15+ years.

Keep checking back to KLTV.com for the latest update on the court proceedings this afternoon.

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