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CAUSE NO. -293925
SARA BETANCUR, IN THE DISTRICT COURT OF
Plaintiff,
VS.
SANDRA BETANCUR, INDIVIDUALLY,
AND AS ADMINISTRATOR OF THE ESTATE §
OF JUAN BETANCUR; L. LEE THWEATT, §
INDIVIDUALLY, TERRY & THWEATT, P.C.; §
GUERRA & FARAH, PLLC; § T. BEND COUNTY, TEXAS
FARAH LAW GROUPPLLC; AND
GEORGE K. FARAH, INDIVIDUALLY,
Defendants. JUDICIAL DISTRICT
PLAINTIFF RESPONSE IN OPPOSITION TO DEFENDANT SANDRA
BETANCUR’S PLEA TO THE JURISDICTION, PLEA IN ABATEMENT
AND JOINDER IN MOTION TO TRANSFER VENUE
COMES NOW, Plaintiff SARA BETANCUR (hereinafter “Plaintiff” or “Sara”) and files
her Response in Opposition to Defendant Sandra Betancur’s Plea to the Jurisdiction, Plea in
Abatement and Joinder in Motion to Transfer Venue (““Motion) and in support of such, respectfully
shows the following:
INTRODUCTION
This case involves non probate claimsas well as possible Probate claims:
n Probate Claims Plaintiff is seeking monetary damages from her
former lawyers for legal malpractice, negligence, conspiracy, breach of
fiduciary duties, and other claims related to the settlement and disbursement
of funds from an underlying personal injury (not probate)case.
Possible Probate Claims laintiff also seeks monetary damages from the
personal representative of her deceased husband’s estate for breach of
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fiduciary duties, breach of contract, conversion, theft and fraud. All of
Plaintiffs claims against the personal representative occurred after the
probate proceeding was completed and a judgment entered. ( ee attached
Exhibit A).
The undersigned counsel has reviewed the Plea to the Jurisdiction filed by
Defendant Sandra Betancur and files this response accordingly. Plaintiff does not believe that
Collin County has exclusive jurisdiction over this action. Instead, Plaintiff believes that Fort Bend
County has concurrent jurisdiction and for reasons set forth herein below, venue als exists in Fort
Bend County.
FACTS
Sara Betancur retained Lawyer Defendants to pursue claims on her behalf against
Fitness International, LLC d/b/a LA Fitness and A S 101 Beltway 8 West Road, LP (hereinafter
“LA Fitness”) related to the death of her husband, Juan Carlos Betancur, which occurred on
November 20, 2014. After representing Sara for almost two (2) years, and merely 4 months before
the expiration of her two year Statute of Limitations, the Lawyer Defendants told Plaintiff, Sara
Betancur that it would be better for “HER” case is she helped her lawyers get in contact with the
Deceased’s ex wife, ( Defendant Sandra Betancur , so the attorneys could add the minor
children to the lawsuit. Because Plaintiff trusted her attorneys, and because she was told it would
be better for “her” case, she put the attorneys in contact with Sandra Betancur. The Lawyer
Defendant’s immediately contacted Sandra Betancur with the goal of adding the minor children to
their list of clients in this case. However, apparently Sandra Betancur told the attorneys that she
did not believe that Sara and Juan were married because she was not told about the marriage by
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either of them. This immediately created a conflict of interest precluding the attorneys from
representing both Sara and the children, so after representing Sara for 18 months, the Lawyer
Defendants dropped Sara in the proverbial grease and instead chose to represent the easier
claimants, the minor children. Within mere days of having the phone call with Sandra about
representing the children, he lawyer Defendants had a telephone call with their client Sara,
wherein they specifically told her the foll ing: (1). She did not have a viable common law spouse
claim; and (2) that if she tried to pursue her claims, she would harm the claims of the minor
children. They did not tell her the following: (1) That she should contact other attorneys; (2) That
her statute of limitations was running in approximately four months; (3) That she could not be
poured out on Summary Judgment if she pursued her claims, because the issue of standing as
Common-Law Spouse is a fact issue for the Jury; (4) That the attorneys now had a conflict of
interest, because they were more concerned about the claims of the minors than they were about
their own client, and therefore it was imperative for Sara to contact and seek the legal advice of an
attorney who did not have a conflict of interest. After the phone call with her attorney, Lee
Thweatt, and after the receipt of the termination letter from her attorneys, ( ee attached Exhibit
__), Sara believed she had no viable claims and did not file suit before the running of her Statue of
Limitations. The day after their misleading and deceptive telephone call with their client, the
awyer Defendants sent Sara a letter terminating their attorney client relationship with Sara on
July 26, 2016 (four months prior to the expiration of the statute of limitations) (See attached
Exhibit B) Literally one day after they terminated their -month relationship with Sara, the
awyer efendants sent a fee contract to Sandra Betancur to represent the minor children. Their
plan to discourage Sara from filing suit or seeking another attorney worked as planned and Sara
missed her deadline to file her own lawsuit. To further ensure that Sara did not file her own
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claims, the Lawyer Defendants intentionally chose not to disclose the looming Statute of
Limitations and specifically chose not to encourage her to seek the opinions of other counsel to
advise her on her rights. Even in the face of Lawyer Defendants’ known conflict of interest and
duty to disclose such to Sara and advise her to seek the opinions of attorneys that did not have this
conflict, Lawyer Defendants chose instead to give Sara some parting legal advice and tell her she
had no case to pursue and that she shouldn’t pursue it or she would harm the minor children.
Lawyer efendants then filed a lawsuit on behalf of their new clients against LA
Fitness on August 11, 2016 styled Cause No. 2016 53441; In the 55 Judicial District Court of
Harris County, Texas (“Underlying Case’).
Despite actual knowledge of Sara’s claim as the surviving spouse, gained as a result
of their attorney client relationship, Lawyer Defendants filed suit, naming ex wife Sandra Betancur
as the Administrator of the Estate of Juan Carlos Betancur (the “Estate”’) and did not notify counsel
for LA Fitness of Sara’s existence. When L.A. Fitness learned of Sara’s standing as common
law spouse, they filed a motion to dismiss the Estate’s claim due to the fact that Sandra, as ex
wife, had no standing, and pointing out to the court that Sara was listed on the Death Certificate
as the “common law spouse” Lawyer Defendants then once again took positions that were
adverse to their former client Sara by arguing that Sara missed certain deadlines regarding her
status as a common law spouse.
As a result of Lawyer Defendants’ breach of their fiduciary duty to Sara by
dropping Sara in the grease in favor of the perhaps more sympathetic children’s claims, and
Lawyer Defendants’ failure to advise Sara of her legal rights, her need to contact another attorney
and of the quickly approaching statute of limitations related to her claims, Sara was denied her
right to retain zealous and honest counsel and file suit prior to the expiration of the two year statute
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of limitations on her claims. She did not file suit within the statute of limitations because she was
told she had no claims and she wa told to seek advice of other counselThis is despite the
fact that the Lawyer Defendants knew that Common law spouse standing is a fact issue for the
jury to decide, (NOT the defendants herein) and her claims would not be dismissed by summary
judgment.
On or about July 11, 2018, long after the statute of limitations had run on Sara’s
Wrongful Death, Survival and Bystander claims, she received a call from an attorney ad litem
advising her of a probate proceeding in Collin County, Texas, where she was listed as Juan’s
common law spouse and needed to hire an attorney to represent her. The issue in the probate matter
was to determine who had standing to represent the estate of Juan for his survival claim. Sara
retained an attorney to help her in the probate matter and then On January 29, 2019, Sara and
Sandra entered into an agreement in the related Probate matter whereby it was agreed that Sara
would receive 20% of the proceeds of all survival claims recovered on behalf of Decedent, Juan
Carlos Betancur’s Estate, in exchange for Sara agreeing to allow Sandra to continue as the
Administrator of the estate.
This satisfied L.A. Fitness’ concerns regarding who had standing to represent the
estate and the underlying lawsuit for the death of Juan proceeded accordingly. Ultimately, all
claims in the Underlying Case against LA Fitness were subsequently settled on or about March
for an aggregate amount to resolve all claims by all parties. Lawyer Defendants then
conspired with Sandra Betancur to breach her fiduciary duty to the Estate, by agreeing to divide
the “aggregate settlement” in a way that deprived Sara of most of the money. More specifically,
the only wrongful death beneficiaries (because Sara’s statute ran) were the 2 minor children, who
Sandra represented as next friend. The only beneficiaries of the Survival Claims belonging to the
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estate of Juan, were the minor children and Sara. Pursuant to the agreement between Sara and
Sandra in the Probate court matter, Sara would get 20% of the Estate recovery and the minor
children would get the remaining 80% of the “proceeds” of the settlement. Defendant Thweatt
testified that he and Sandra decided together how to divide the settlement funds. Therefore,
Defendants conspired to divide the “gross” settlement in a way that apportioned roughly 85% of
the recovery to the Wrongful Death claimants (minor children only) and 15% to the beneficiaries
of the Survival claims (minor children and Sara Betancur). In other words, the minor children were
claimants/beneficiaries of all pending claims, whereas Sara was only entitled to 20% of the
Survival claim “proceeds”. By dividing the money in the manner determined by the Lawyer
Defendants, they conspired with and aided Sandra in a manner that favored the Wrongful Death
claims over the Survival claims and as such favored one class of beneficiaries over another (the
estate proceeds). It is undisputed that the Lawyer Defendants represented the Estate and owed a
fiduciary duty to the Estate. It is also undisputed that Sandra, as Administrator of the Estate, owed
a fiduciary duty to the Estate and the beneficiaries of the Estate, which included Sara Betancur,
Plaintiff herein. The Lawyer Defendants aided, abetted, assisted, advised and conspired with the
Administrator of the Estate to divide the gross/aggregate settlement monies in a way that reduced
the recovery to the Estate (one client) and by doing so favored one class/group of Estate
beneficiaries (the minor children) over another (Sara).
Additionally, even though Lawyer Defendants were aware of Sara and Sandra’s
agreement whereby Sara Betancur was entitled to 20% of the “proceeds” of the Estate’s recovery,
they received the settlement funds but neglected to pay them to Sara_ their former client. Neither
Lawyer Defendants nor Sandra paid Sara her 20% of the proceeds of the survival claims brought
on behalf of Decedent, Juan Carlos Betancur’s estate, thereby committing conversion of Sara’s
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proceeds. It was not until more than 1.5 years after receipt of the money, and after Sara sued the
Lawyer Defendants in another matter in Harris County, that ndra finally sent a check made
payable to Sara, but it was not the full amount owed under the claims of the case. (See attached
Exhibit C). This is the only money received by Sara for the death of her husband, even though
the settlement of the underlying case was for $650,000.00.
Further, even though Lawyer Defendants were aware of the settlement agreement
entered into in the Probate court awarding Sara 20% of “proceeds” NOT “net” proceeds, the
Lawyer Defendants knowingly, consciously and wrongfully deducted their fees and expenses from
Sara’s 20% of the proceeds of the Survival claims which they were not entitled to do, which also
amounts to conversion. In fact, the awyer efendants deducted from Sara’s recovery the legal
fees of “Sandra 2g probate attorneys, who were adverse to Sara and who took adverse positions
from her in the Probate matter. The Defendant’s deducted all these fees and costs from Sara’s
recovery without her permission and without authority under the settlement.
On January 7, 2020, Lawyer Defendants filed a letter in the Underlying Case
advising the court that the case had settled. At no time was Sara made aware of such settlement by
Lawyer Defendantsor Sandra, as Administrator of the Estate.
On or about April 28, 2020, Lawyer Defendants received the settlement funds. And
still no one notified Sara of the settlement. On or about June 3, 2020, Lawyer Defendants drafted
settlement statements that were signed by Sandra which disproportionately divided the aggregate
ttlement funds favoring one beneficiary over another to the detriment of Sara Betancur and the
Estate. Again, no one notified Sara of the settlement or disbursement of settlement money.
Lawyer Defendants and Sandra then concealed and hid the fact of settlement and the settlement
funds from Sara. Plaintiff, Sara Betancur, did not know about the settlement of the Underlying
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Case against LA Fitness, or the settlement hearing until long after the settlement monies were
disbursed (to everyone but her) which s well after June 12, 2020, when Sandra signed the
settlement statements for disbursement of the settlement funds.
As a result of the above acts and omission by Lawyer Defendants and Sandra, and
their breach of fiduciary duties owed to Sara, and/or their negligent acts and/or omissions, Sara’s
Wrongful Death and Bystander claims and causes of action against LA Fitness were barred by the
statute of limitations, two years after the death of her husband.
Further, on or about April 1, 2016, Sara and Lawyer Defendants executed a Consent
to Refer Agreement, in which Lawyer Defendants failed to disclose the amount or share of the
attorney’s fee(s) that each lawyer or law firm would receive, as required by the Texas Disciplinary
Rules of Professional Conduct §1.04. As such, Lawyer Defendants violated the Texas Disciplinary
Rules of Professional Conduct §1.04, and the Lawyer Defendants should forfeit any and all
attorney’s fees paid to them pursuant to the underlying case. In the same agreement, the Lawyer
Defendants agreed to be jointly responsible for their conduct in this matter.
Il
PLEA TO THE JURISDICTION
Application for Temporary Administration of the Estate of Juan Carlos Betancur,
was filed on December 28, in statutory Probate Court No. 1 in Collin County, Texas.
Sandra Betancur was appointed as Independent Administrator of the Estate of Juan Betancur by
statutory Probate Court No. 1 in Collin County, Texas on January 25, in Cause No. PBI
2201-2017. (See attached Exhibit D That administration was concluded three years ago and
there is no ongoing probate proceeding.
A statutory probate court has the general jurisdiction of a probate court as provided
by the Estates Code, and the jurisdiction provided by law for a county court to hear and determine
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actions, cases, matters, or proceedings instituted under certain provisions of the Health and Safety
Code. See TEX.GOV'T CODE ANN. § 25.0021 (West Supp. 2017). It is a court of limited
jurisdiction. See Stauffer v. Nicholson , 438 S.W.3d 205, 213 (Tex.App.Dallas 2014, no pet.),
citing In re United Services Automobile Association, 307 S.W.3d 299, 302 03 (Tex. 2010
(contrasting the limited jurisdiction of statutory probate courts with the general jurisdiction of
district courts).
Statutory probate courts are courts of limited jurisdiction. See Stauffer v.
Nicholson, 428 S.W.3d 205, 213 (Tex.App.Dallas 2014, no pet.). Section 32.001 of the Texas
Estates Code establishes original probate court jurisdiction:
(a) All probate proceedings must be filed and heard in a court
exercising original probate ju diction. The court exercising original
probate jurisdiction also has jurisdiction of all matters related to the
probate proceeding as specified in Section 31.002 for that type of court.
Defendant Sandra Betancur’s sole basis for her plea to the jurisdiction is that the
Probate Court No. 1 in Collin County, Texas has exclusive jurisdiction for any claims against
Sandra Betancur in her capacity as Administrator. (Motion at p. 2) Texas Estates Code §32.005
provides that:
In a county in which there is a statutory probate court, the statutory
probate court has exclusive jurisdiction of all probate proceedings
regardless of whether contested or uncontested. A cause of action
related to the probate proceeding must be brought in a statutory probate
court unless the jurisdiction of the statutory probate court is
concurrent with the jurisdiction of a district court as provided by
Section 32.007 or with the jurisdiction of any other court. Emphasis
added)
The exception in Texas Estate Code Section 32.007 provides that:
A statutory probate court has concurrent jurisdiction with the district
court in:
(1) a personal injury, survival, or wrongful death action by or against
a person in the person’s capacity as a personal representative
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(2) an action by or against a trustee;
(3) an action involving an inter vivos trust, testamentary trust, or
charitable trust, including a charitable trust as defined by Secti
123.001, Property Code;
(4) an action involving a personal representative of an estate in which
each other party aligned with the personal representative is not an
interested person in that estate;
(5) an action against an agent under a power of attorney arising out of
the agent’s performance of the duties of an agent; and
(6) an action to determine the validity of a power of attorney or to
determine an agent’s rights, powers or duties under a power of attorney.
(Emphasis added)
Plaintiffs claims in this case arise from her Wrongful Death, Bystander and
Survival claims (all personal injury) related to the death of her husband Juan Betancur and the
subsequent tortious acts and omissions committed by all Defendants herein, including the lawyers
and Sandra Betancur as personal representative. These pending claims are all related to the
underlying personal injury claims Sandra Betancur’s standing as the personal representative of
the estate of SARA’s husband was based on the contractual agreement between Sara and Sandra
which was approved by the probate court. In this pending matter, Plaintiff seeks a judgment for
money damages for the injuries and losses she sustained in the underlying personal injury matter
as a result of these Defendants breach of fiduciary duty, conspiracy, tortious interference,
conversion, theft and fraud related specifically to her personal injury claims that were lost because
of All of the defendant’s concerted efforts.
The claims asserted by Plaintiff fall under the categories listed in section 32.007,
and therefore the probate court’s jurisdiction over this case is concurrent. Texas Estates Code gave
the statutory probate court in Collin County, Texas concurrent not exclusive jurisdiction. See
King v. Deutsche Bank Nat’l Tr. Co., 472 S.W.3d 848, 856 (Tex.App.Houston [1 Dist.] 2015,
no pet.) (holding that section 32.005 “confers on statutory probate courts exclusive jurisdiction
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over causes of action related to a probate proceeding unless Section 32.007 provides that the action
is subject to concurrent jurisdiction in a district court.”).
Plaintiff respectfully submits that the Fort Bend County district court has subject
matter jurisdiction, has concurrent jurisdiction, and Defendant Sandra Betancur’s plea to the
jurisdiction should be denied in its entirety.
Alternatively, if this court deems that the Collin County Probate court has exclusive
jurisdiction, and that the exceptions cited under the statute do not apply to this case, then Plaintiff
requests that this court transfer this action to Probate Court No. 1 in Collin County, Texas.
IV.
PLEA IN ABATEMENT
Next, Defendant Sandra Betancur argues that a district court in Harris County,
Texas has dominant jurisdiction because it was filed first. (Motion at p. 2) Pending in Harris
County, Texas, is a lawsuit involving the Plaintiff and only the Lawyer Defendants from this case.
See Cause No. 2020-39035; Sara Betancur vs Guerra & Farrah, PLLC, et al; In the 157th Judicial
District Court (the “Harris County Lawsuit’)
However, dominant jurisdiction may only arise where there are two or more cases
that are inherently related because they involve the same parties and the same controversy. Jn re
Volkswagen Clean Diesel Litigation, 557 $.W.3d, 73, 76 (Tex. App.—Austin 2017, no pet.).
Here, the same parties are NOT involved. As Plaintiff has previously briefed the
Court in her response to a motion to transfer venue after objections by the lawyer defendants, the
Judge in the Harris County Lawsuit refused to add Sandra Betancur as a party to that case denying
Plaintiff's motion for leave to add her as a party.
Similarly, after objections by the lawyer defendants, the Judge in the Harris County
Lawsuit has also ruled that causes of action against the lawyer defendants that occurred after
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July 26, 2016 will be allowed to be heard in that case. Because the statute of limitations had not
expired on her claims against Sandra Betancur, or the claims against the attorneys after July 26,
Plaintiff was forced to file this pending matter, and chose Fort Bend County, where
Defendant Sandra Betancur resides The two lawsuits do not involve the same parties or claims
and therefore, abatement would be improper.
Vv.
JOINDER IN MOTION TO TRANSFER VENUE
Defendant Sandra Betancur has also filed a joinder in the Motion to Transfer Venue
of this matter to Harris County filed by L. Lee Thweatt and Terry & Thweatt, P.C. Accordingly,
Plaintiff incorporates her previously filed response in opposition to the Motion to Transfer Venue
as if it was set forth herein for all purposes. (See attached _ xhibit
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that (1) Defendant Sandra
Betancur’s Plea to the Jurisdiction be denied in its entirety, or alternatively, Plaintiff prays that his
matter be transferred to Probate Court No. One in Collin County, Texas; (2) Defendant Sandra
Betancur’s Plea in Abatement be denied in its entirety; (3) the Motion to Transfer Venue pending
before this Court be denied in its entirety, and (4) all other and further relief, general and special,
at law and in equity, to which Plaintiff may show h self justly entitled.
Respectfully submitted,
EARS RAWFORD L.L.P.
By: /s/ Ross A. Sears, IT
Ross A. Sears, II
State Bar No. 17960011
1200 Rothwell Street
Houston, Texas 77002
Page 12 of
Email: ross@searscrawford.com
Telephone (713) 223-3333
Facsimile (713) 223-3331
ATTORNEYS FOR PLAINTIFF
CERTIFICATE OF SERVICE
Thereby certify that a true and correct copy of the foregoing instrument was served pursuant
to the Texas Rules of Civil Procedure on the following on August 5, 2022:
Ross A. Sears, II
Ross A. Sears, II
Page 13 of
Ben a Sy
?
CAUSE NO. PB1-2201-2017
ESTATE OF IN THE PROBATE COURT
JUAN CARLOS BETANCUR, OF
DECEASED COLLIN COUNTY, TEXAS
JUDGMENT DECLARING HEIRSHIP
On January 25, 2019 came on to be heard the sworn Application for Heirship
Determination in the Estate of Juan Carlos Betancur, deceased (“Decedent”), filed on June 12,
2018, wherein Sandra Betancur is the Applicant, and Decedent’s unknown heirs and heirs whose
whereabouts are unknown are Defendants, and it appears to the Court and the Court so finds that
all parties interested in the Estate of Decedent have been made parties to the Application, have
filed written waivers of service of citation, have appeared and answered herein, or have been duly
and legally served with citation as required by law; that the Court appointed Brian Hill to be
Attorney Ad Litem to appear and represent Defendants and such Attorney Ad Litem did so appear
and represent Defendants; that the Court has jurisdiction of the subject matter and all persons and
parties; that the evidence presented and admitted fully and satisfactorily proves each and every
issue presented to the Court; and that Decedent died intestate and that the heirship of Decedent has
been fully and satisfactorily proved as well as the identity of the nature of Decedent’s property as
being separate or community and the interest and shares of each of the heirs therein.
The Court finds and it is ORDERED by the Court that the names and places of residence
of the heirs of Decedent and their respective shares and interests in the real and personal property
of the Decedent are as follows:
Share and Interest in
Name and Relationship Residence Address Real and Personal Property
Sara Betancur 10022 Sable Meadow Ct. . 1/3 life estate in separate
common-law wife Houston, Texas 77064 real property;
judgment Declaring Heirship Page 1 of 2
BEN000028
y
1/3 interest in separate
personal property.
Briseis Betancur 20531 Fertile Valley Ln. 1/2 interest in separate real
daughter Richmond, Texas 77407 property subject to Sara
Betancur’s 1/3 life estate;
1/3 interest in separate
personal property;
1/2 interest in Decedent’s
1/2 community real and
personal property.
Aiden Betancur 20531 Fertile Valley Ln. 1/2 interest in separate real
son Richmond, Texas 77407 property subject to Sara
Betancur’s 1/3 life estate;
1/3 interest in separate
personal property;
1/2 interest in Decedent’s
1/2 community real and
personal property.
It is ORDERED that Brian Hill, the Attomey Ad Litem appointed to represent the interests
of the Defendants, is allowed a fee of $ S 7 Laie shall be paid out of the assets of Decedent’s
Estate.
Signed this 25" day of January 2019.
Od
HON. WI ELDON S. COPE]
JUDGE PRESIDING
Judgment Declaring Heirship Page 2 of 2
BEN000029
—x
TT
—a
TERRY & THWEATT,P.C
— — TRIAL LAWYERS—
HWEAIT
Ithweatt@ tenythweatt.com
July 26, 2016
Ms. Sara Betancur
10022 Sablemeadow
Houston, Texas 77064
Via Electronic Mail and Federal Express
Re: Withdrawal of representation
Our File: 546
Dear Sara:
Thank you for taking the time to visit with me by phone yesterday. As
discussed, this letter provides written confirmation to you that our law firm (Terry
& Thweatt, P.C.) and the Law Offices of Guerra & Farrah, PLLC, are both
withdrawing as your counsel for all claims related to the death of Juan Betancur.
Y ou do not owe any attorney fees or case expenses to either of our law firms.
We thank you for your time spent with us discussing this difficult matter,
and wish you the very best going forward.
Y ours faithfully,
ERRY EATT P.C.
eo
L. Lee Thweatt
Ck. ba
T/mo
One Greenway Plaza, Suite 100 | Houston, Texas 77046-0102 | Telephone: (713) 600-4710 | Facsimile: (713) 600-4706
www.terrythweatt.com
Copy to:
Mr. George K. Farah
The Law Offices of Guerra & Farah, PLLC.
4101 Washington Ave., 3" Floor
Houston, Texas 77007
Via Fax: (713) 529-6605
2|Page
CASHIER'S CHECK 986834
CHASEEST
Remitter: OF JUAN BETANCUR/SANDRA BETANCUR ADMSTR
12/07/2021 Void ater 7 years. 4a
Pay To The SARA MARTINEZ-BETANCUR
Order Of:
Pay: NINE THOUSAND EIGHT HUNDRED NINETY NINE DOLLARS AND 57 CENTS $** 9,899.57 **
Drawer: JPMORGAN SHASE BANK, N.A.
Do not write outside this box
“Releceom Geri
Memo: Rebecca Griffin, Chief Administrative Officer
Note: For information only. Comment has no effect on bank's payment. JPMorgan Chase Bank, N.A.
pare SS gee Sali eae Se Columbus, OH Be Sat ghar An Rea See agate es
ee
CAUSE NO. PB1-2201-2017
ESTATE OF IN THE PROBATE COURT
JUAN CARLOS BETANCUR, OF
DECEASED COLLIN COUNTY, TEXAS
ORDER GRANTING ADMINISTRATION AND APPOINTING ADMINISTRATOR
On January 25, 2019 came to be heard the Application for Letters of Independent
Administration filed on June 12, 2018 by Sandra Betancur (“Applicant”) in the Estate of Juan Carlos
Betancur, deceased.
The Court heard the evidence and finds that Juan Carlos Betancur (“Decedent”) died on
November 20, 2014 in Harris County, Texas; that his principal residence and estate are located in
Harris County, Texas; that Decedent died intestate; that a necessity exists for the administration of
Decedent’s Estate; that Sandra Betancur is qualified and not disqualified to serve as Independent
Administrator of the Estate.
IT IS, ACCORDINGLY, ORDERED, ADJUDGED AND DECREED that Sandra Betancur
is hereby appointed Independent Administrator of the Estate of Juan Carlos Betancur, deceased.
IT IS FURTHER ODERED, ADJUDGED AND DECREED that when oath has been filed,
the Clerk of this Court shall issue Letters of Independent Administration on the Estate of Juan Carlos
Betancur, deceased, to Sandra Betancur.
Signed this 25" day of January 2019.
. WELDON 8. COPELAI
JUDGE PRESIDING
Order Appointing Administrator and for Issuance of Letters of Administration
2020-30035 Non- Bas tf dnooo103
CAUSE NO. -293925
SARA BETANCUR, IN THE DISTRICT COURT OF
Plaintiff,
VS.
SANDRA BETANCUR, INDIVIDUALLY, §
AND AS ADMINISTRATOR OF THE ESTATE §
OF JUAN BETANCUR; L. LEE THWEATT, §
INDIVIDUALLY, TERRY & THWEATT, P.C.; §
GUERRA & FARAH, PLLC; § FT. BEND COUNTY, TEXAS
FARAH LAW GROUPPLLC ; §
GEORGE K. FARAH, INDIVIDUALLY, §
Defendants. JUDICIAL DISTRICT
PLAINTIFF RESPONSE I N OPPOSITION
DEFENDANTS’ MOTION TO TRASFER VENUE
COMES NOW, Plaintiff SARA BETANCUR (hereinafter “Plaintiff” or “Sara”) and files
her response in opposition to Thweatt and all other Defendants’ Motion to Transfer Venue
(Motion) and in support of such, respectfully show the following:
INTRODUCTION
This is a case against the Executor of the Estate of Juan Betancur (Plaintiffs
common law husband) a Plaintiff's former lawyers for negligence, conspiracy, breach of
fiduciary duties, and other claims related to the settlement and disbursement of funds from an
underlying personal injury case.
2 Venue is proper in Fort Bend County, Texas because one of the defendants resides
inF t Bend County. The law is clear that Plaintiff can file suit where any defendant resides. See
Tex. Civ. Prac. Rem. Code Ann. § 15.005. Sandra Betancur resides in Ft Bend County, Texas
and therefore venue is absolutely proper and appropriate here.
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Thweatt Defendants (with joinder by the other Defendants) seek to now transfer
venue of this case to Harris County where Plaintiff originally tried to file it, and Defendants
objected. These defendants previously opposed and objected to Plaintiff's attempts to bring these
claims in that Harris County awsuit and now ignore the fact that the Judge in the Harris County
case specifically ordered that Plaintiff should file a separate lawsuit, which she did, this lawsuit!
Defendants got what they asked for and now want to complain about it. They convinced the Harris
County Court to disallow this proceeding to be heard in the same case. Plaintiffs counsel notified
the court and opposing counsel that the statute of limitations on these claims had not yet expired
and therefore, if the court denied Plaintiff the right to pursue all these related claims in the same
court, Plaintiff would be force to file a separate suitThe court even discussed options with
Plaintiff's counsel on where to file suit: 1) in the county where the probate matter was handled
(Collin County); 2) in the county where Defendant Sandra Betancur resides (Fort Bend County);
3) as a new case in Harris County; or 4) As a severed or sub file of the pending Harris County
case. Plaintiff argued that judicial economy and convenience should mandate that the claims be
ried together in the same Harris County case, because of the similarity of claims and witnesses
and the fact that all claims arise out of the same set of facts. However, the Lawyer Defendants,
led by Defendant Thweatt vigorously opposed Plaintiff's motion and asked the Judge to dismiss
Plaintiff's new/timely claims from the case, knowing, that based on statements from Plaintiffs
counsel and the comments from the court, that a new lawsuit would have to be filed, and 2 of the
3 possible counties were NOT Harris County. These same Defendants now beg this court to send
the case back to where Plaintiff tried to file it to begin with. This reminds one of the old adage
“be careful what you ask for”. The Defendants were happy to win the immediate battle but id
not think about how that would affect them in the war. Now that the very thing Plaintiff's
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counsel warned them would happen, has happened and now they want to try to forum shop the
case and dictate where Plaintiff must file the new case that they forced Plaintiff to file. The law
does not work that way and the law does not permit Defendants to do that.
ARGUMENT & AUTHORITIES
PLAINTIFF’S CHOICE OF VENUE, IF PROPER, CANNOT BE
DISTURBED
laintiff chooses venue by deciding where to file a lawsuit. See In re Team
Rocket, 256 S.W.3d 257, 259 (Tex. 2008). Texas statutes makes that clear. Tex. Civ. Pac. Rem.
Code Ann. § 15.002 The statutes also make it clear that in a suit in which the plaintiff has
established proper venue against a defendant, the court also has venue of all the defendants in all
claims or actions arising out of the same transaction, occurrence, or series of transactions or
occurrences. See Tex. Civ. Prac. Rem. Code Ann. § 15.005.
Additionally, i ore than one county would be appropriate venue choices, the
plaintiff's choice controls. See Moveforfree.com, Inc. v. David Hetrick, Inc., 288 S.W.3d 539, 542
(Tex.App.—Houston [14 Dist.] 2009, no pet.). See also Velasco v. Texas Kenworth Co., 144
S.W.3d 632, 635 (Tex.App.—Dallas 2004, pet. denied).
Venue may be proper in more than one county under the venue rules. In general,
plaintiffs are allowed to choose venue first, and the plaintiff's choice of venue cannot be disturbed
as long as the suit is initially filed in a county of proper venue. See Jn re Henry, 274 S.W.3d 185,
190 (Tex.App.—Houston [1 Dist.] 2008, orig. proceeding).
In this case, Plaintiff's venue choice was proper in Fort Bend County because
efendant Sandra Betancur resides there. is more convenient for Defendant Sandra Betancur,
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who lives there. Therefore, because this suit was filed in a county of proper venue, Plaintiffs
choice of venue in Fort Bend County cannot be disturbed. Jd.
THWEATT’S REQUEST TO TRANSFER THIS LAWSUIT HARRIS
COUNTY IS MISLEADING AND DISENGENOUS
Pending in Harris County, Texas, is a lawsuit involving the Plaintiff and only the
Lawyer Defendants from this case. See Cause No. 2020 39035; Sara Betancur vs Guerra &
Farrah, PLLC, et al; In the 157 Judicial District Court (the “Harris County Lawsuit”) Mr.
Thweatt’s attempts to focus the Court on the Harris County Lawsuit as a proper Court for venue
are misplaced.
Plaintiff attempted to add Defendant Sandra Betancur to the Harris County Lawsuit
Ex. A Plaintiff attempted to do the very thing that Defendants now ask for, and Defendants
objected and won. See Ex. B Court denied Plaintiff's motion for leave to add these new
claims See Ex. G, 4/4/22 Order) The statute of limitations for Plaintiff's claims against Ms.
Betancur and Mr. Thweatt have not expired so Plaintiff is absolutely within her rights to file this
lawsuit.
The very claims that are now pending in this honorable court in Fort Bend County
are the same claims that Plaintiff attempted to add to the pending case in Harris County. The
Defendants and the court said Plaintiff should be forced to file a separate suit and they have done
that. The 3 county/venueoptions as listed above were Collin County (too far and not convenient
to either party); Harris County or Fort Bend County (where defendant Sandra Betancur lives).
Pursuant to the rules, Plaintiff, NOT the defendant gets to choose the venue. Plaintiff chose an
appropriate venue that is convenient to Plaintiff and the Defendant Sandra Betancur. As stated
above, the Harris County court, based on these same Defendant’s objections, ruled that Plaintiff
must file these claims separately from the Harris County pending matter and Ex.
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stated above, over the course of numerous hearings, when the subject of these
Fort Bend County claims arose, counsel for Plaintiff advised the Court that the statute of
limitations had not expired on Plaintiff’s claims against these Defendants and advised that if those
cla ms were not included or allowed in the pending Harris County case then they would have to
be brought in a separate lawsuit. (See Sears Affidavit)
he Court advised counsel for Plaintiff to file a separate lawsuit wherever he
thought appropriate. At an oral hearing on May 16, 2022, for which there was no transcript, the
Court told Plaintiff's Counsel in front of the movants/attorneys the following:
“Counsel you can file a separate lawsuit containing these issues, in Collin County, or
wherever the probate matter proceeded, the county where Sandra Betancur lives, or
you can file it as a sub matter in this Court, but given my previous rulings, you may
ot want me to be the person hearing that case. It is entirely up to you, but I’m not
going to allow those issues in this pending case. I’ll let you decide how you want to
handle that.” (See , Sears Affidavit)
The Court determined that filing a separate lawsuit was the appropriate course of
action. On June 1, 2022, the Court in the Harris County Lawsuit issued an order for a status hearing
the claims at issue in this Fort Bend County case and stated as follows:
“
On April 4, 2022, the Court granted a motion for summary judgment in part and
held that duties at issue in this case terminated on July 26, 216. After that order,
Plaintiff filed her 5 and 6 amended petitions. In those petitions, the Plaintiff
continues to assert that Post 2016 Conduct serves as the basis for additional legal
malpractice and/or fiduciary duty claims. Despite the Court’s request that such
claims be filed in a separate lawsuit, or a case severed from this one, no such action
has taken place (that the Court is aware of) ... It is the Court’s belief that
the Post 2016 Claims belong in a separate laws specifically because they are
prejudicial and confusing as to the 2016 claims...” (See , 6/1/22 Order)
In accordance with the Court’s June 1 Order, Plaintiff filed this lawsuit in Ft. Bend
County, where defendant Sandra Betancurresides .
On June 6, 2022, Plaintiffs counsel sent an email to the court advising that this
Fort Bend County case had been filed making the court’s requirement for status conference moot.
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See Ex. E) In response to this notice, the court passed the status conference as it was no longer an
issue for the court to address.
Mr. Thweatt should not be allowed to object in Harris County that the adding of
party and trying ese issues in the Harris County Lawsuit would be improper
before the Harris County Court and then come before this Court and take a
completely opposite position.
THWEATT’S MOTION CONTAINS BASELESS ARGUMENTS IN
SUPPORT OF HIS DEFENSE AND LITTLE ON THE MERITS OF THE
ACTUAL REQUEST TO TRANSVER VENUE
Defendant Thweatt spends the vast majority of his motion to transfer venue arguing
his defense of the case (in a
Preview
CAUSE NO. -293925 SARA BETANCUR, IN THE DISTRICT COURT OF Plaintiff, VS. SANDRA BETANCUR, INDIVIDUALLY, AND AS ADMINISTRATOR OF THE ESTATE § OF JUAN BETANCUR; L. LEE THWEATT, § INDIVIDUALLY, TERRY & THWEATT, P.C.; § GUERRA & FARAH, PLLC; § T. BEND COUNTY, TEXAS FARAH LAW GROUPPLLC; AND GEORGE K. FARAH, INDIVIDUALLY, Defendants. JUDICIAL DISTRICT PLAINTIFF RESPONSE IN OPPOSITION TO DEFENDANT SANDRA BETANCUR’S PLEA TO THE JURISDICTION, PLEA IN ABATEMENT AND JOINDER IN MOTION TO TRANSFER VENUE COMES NOW, Plaintiff SARA BETANCUR (hereinafter “Plaintiff” or “Sara”) and files her Response in Opposition to Defendant Sandra Betancur’s Plea to the Jurisdiction, Plea in Abatement and Joinder in Motion to Transfer Venue (““Motion) and in support of such, respectfully shows the following: INTRODUCTION This case involves non probate claimsas well as possible Probate claims: n Probate Claims Plaintiff is seeking monetary damages from her former lawyers for legal malpractice, negligence, conspiracy, breach of fiduciary duties, and other claims related to the settlement and disbursement of funds from an underlying personal injury (not probate)case. Possible Probate Claims laintiff also seeks monetary damages from the personal representative of her deceased husband’s estate for breach of Page 1 of 13 fiduciary duties, breach of contract, conversion, theft and fraud. All of Plaintiffs claims against the personal representative occurred after the probate proceeding was completed and a judgment entered. ( ee attached Exhibit A). The undersigned counsel has reviewed the Plea to the Jurisdiction filed by Defendant Sandra Betancur and files this response accordingly. Plaintiff does not believe that Collin County has exclusive jurisdiction over this action. Instead, Plaintiff believes that Fort Bend County has concurrent jurisdiction and for reasons set forth herein below, venue als exists in Fort Bend County. FACTS Sara Betancur retained Lawyer Defendants to pursue claims on her behalf against Fitness International, LLC d/b/a LA Fitness and A S 101 Beltway 8 West Road, LP (hereinafter “LA Fitness”) related to the death of her husband, Juan Carlos Betancur, which occurred on November 20, 2014. After representing Sara for almost two (2) years, and merely 4 months before the expiration of her two year Statute of Limitations, the Lawyer Defendants told Plaintiff, Sara Betancur that it would be better for “HER” case is she helped her lawyers get in contact with the Deceased’s ex wife, ( Defendant Sandra Betancur , so the attorneys could add the minor children to the lawsuit. Because Plaintiff trusted her attorneys, and because she was told it would be better for “her” case, she put the attorneys in contact with Sandra Betancur. The Lawyer Defendant’s immediately contacted Sandra Betancur with the goal of adding the minor children to their list of clients in this case. However, apparently Sandra Betancur told the attorneys that she did not believe that Sara and Juan were married because she was not told about the marriage by Page 2 of 13 either of them. This immediately created a conflict of interest precluding the attorneys from representing both Sara and the children, so after representing Sara for 18 months, the Lawyer Defendants dropped Sara in the proverbial grease and instead chose to represent the easier claimants, the minor children. Within mere days of having the phone call with Sandra about representing the children, he lawyer Defendants had a telephone call with their client Sara, wherein they specifically told her the foll ing: (1). She did not have a viable common law spouse claim; and (2) that if she tried to pursue her claims, she would harm the claims of the minor children. They did not tell her the following: (1) That she should contact other attorneys; (2) That her statute of limitations was running in approximately four months; (3) That she could not be poured out on Summary Judgment if she pursued her claims, because the issue of standing as Common-Law Spouse is a fact issue for the Jury; (4) That the attorneys now had a conflict of interest, because they were more concerned about the claims of the minors than they were about their own client, and therefore it was imperative for Sara to contact and seek the legal advice of an attorney who did not have a conflict of interest. After the phone call with her attorney, Lee Thweatt, and after the receipt of the termination letter from her attorneys, ( ee attached Exhibit __), Sara believed she had no viable claims and did not file suit before the running of her Statue of Limitations. The day after their misleading and deceptive telephone call with their client, the awyer Defendants sent Sara a letter terminating their attorney client relationship with Sara on July 26, 2016 (four months prior to the expiration of the statute of limitations) (See attached Exhibit B) Literally one day after they terminated their -month relationship with Sara, the awyer efendants sent a fee contract to Sandra Betancur to represent the minor children. Their plan to discourage Sara from filing suit or seeking another attorney worked as planned and Sara missed her deadline to file her own lawsuit. To further ensure that Sara did not file her own Page 3 of 13 claims, the Lawyer Defendants intentionally chose not to disclose the looming Statute of Limitations and specifically chose not to encourage her to seek the opinions of other counsel to advise her on her rights. Even in the face of Lawyer Defendants’ known conflict of interest and duty to disclose such to Sara and advise her to seek the opinions of attorneys that did not have this conflict, Lawyer Defendants chose instead to give Sara some parting legal advice and tell her she had no case to pursue and that she shouldn’t pursue it or she would harm the minor children. Lawyer efendants then filed a lawsuit on behalf of their new clients against LA Fitness on August 11, 2016 styled Cause No. 2016 53441; In the 55 Judicial District Court of Harris County, Texas (“Underlying Case’). Despite actual knowledge of Sara’s claim as the surviving spouse, gained as a result of their attorney client relationship, Lawyer Defendants filed suit, naming ex wife Sandra Betancur as the Administrator of the Estate of Juan Carlos Betancur (the “Estate”’) and did not notify counsel for LA Fitness of Sara’s existence. When L.A. Fitness learned of Sara’s standing as common law spouse, they filed a motion to dismiss the Estate’s claim due to the fact that Sandra, as ex wife, had no standing, and pointing out to the court that Sara was listed on the Death Certificate as the “common law spouse” Lawyer Defendants then once again took positions that were adverse to their former client Sara by arguing that Sara missed certain deadlines regarding her status as a common law spouse. As a result of Lawyer Defendants’ breach of their fiduciary duty to Sara by dropping Sara in the grease in favor of the perhaps more sympathetic children’s claims, and Lawyer Defendants’ failure to advise Sara of her legal rights, her need to contact another attorney and of the quickly approaching statute of limitations related to her claims, Sara was denied her right to retain zealous and honest counsel and file suit prior to the expiration of the two year statute Page of of limitations on her claims. She did not file suit within the statute of limitations because she was told she had no claims and she wa told to seek advice of other counselThis is despite the fact that the Lawyer Defendants knew that Common law spouse standing is a fact issue for the jury to decide, (NOT the defendants herein) and her claims would not be dismissed by summary judgment. On or about July 11, 2018, long after the statute of limitations had run on Sara’s Wrongful Death, Survival and Bystander claims, she received a call from an attorney ad litem advising her of a probate proceeding in Collin County, Texas, where she was listed as Juan’s common law spouse and needed to hire an attorney to represent her. The issue in the probate matter was to determine who had standing to represent the estate of Juan for his survival claim. Sara retained an attorney to help her in the probate matter and then On January 29, 2019, Sara and Sandra entered into an agreement in the related Probate matter whereby it was agreed that Sara would receive 20% of the proceeds of all survival claims recovered on behalf of Decedent, Juan Carlos Betancur’s Estate, in exchange for Sara agreeing to allow Sandra to continue as the Administrator of the estate. This satisfied L.A. Fitness’ concerns regarding who had standing to represent the estate and the underlying lawsuit for the death of Juan proceeded accordingly. Ultimately, all claims in the Underlying Case against LA Fitness were subsequently settled on or about March for an aggregate amount to resolve all claims by all parties. Lawyer Defendants then conspired with Sandra Betancur to breach her fiduciary duty to the Estate, by agreeing to divide the “aggregate settlement” in a way that deprived Sara of most of the money. More specifically, the only wrongful death beneficiaries (because Sara’s statute ran) were the 2 minor children, who Sandra represented as next friend. The only beneficiaries of the Survival Claims belonging to the Page of estate of Juan, were the minor children and Sara. Pursuant to the agreement between Sara and Sandra in the Probate court matter, Sara would get 20% of the Estate recovery and the minor children would get the remaining 80% of the “proceeds” of the settlement. Defendant Thweatt testified that he and Sandra decided together how to divide the settlement funds. Therefore, Defendants conspired to divide the “gross” settlement in a way that apportioned roughly 85% of the recovery to the Wrongful Death claimants (minor children only) and 15% to the beneficiaries of the Survival claims (minor children and Sara Betancur). In other words, the minor children were claimants/beneficiaries of all pending claims, whereas Sara was only entitled to 20% of the Survival claim “proceeds”. By dividing the money in the manner determined by the Lawyer Defendants, they conspired with and aided Sandra in a manner that favored the Wrongful Death claims over the Survival claims and as such favored one class of beneficiaries over another (the estate proceeds). It is undisputed that the Lawyer Defendants represented the Estate and owed a fiduciary duty to the Estate. It is also undisputed that Sandra, as Administrator of the Estate, owed a fiduciary duty to the Estate and the beneficiaries of the Estate, which included Sara Betancur, Plaintiff herein. The Lawyer Defendants aided, abetted, assisted, advised and conspired with the Administrator of the Estate to divide the gross/aggregate settlement monies in a way that reduced the recovery to the Estate (one client) and by doing so favored one class/group of Estate beneficiaries (the minor children) over another (Sara). Additionally, even though Lawyer Defendants were aware of Sara and Sandra’s agreement whereby Sara Betancur was entitled to 20% of the “proceeds” of the Estate’s recovery, they received the settlement funds but neglected to pay them to Sara_ their former client. Neither Lawyer Defendants nor Sandra paid Sara her 20% of the proceeds of the survival claims brought on behalf of Decedent, Juan Carlos Betancur’s estate, thereby committing conversion of Sara’s Page 6 of 13 proceeds. It was not until more than 1.5 years after receipt of the money, and after Sara sued the Lawyer Defendants in another matter in Harris County, that ndra finally sent a check made payable to Sara, but it was not the full amount owed under the claims of the case. (See attached Exhibit C). This is the only money received by Sara for the death of her husband, even though the settlement of the underlying case was for $650,000.00. Further, even though Lawyer Defendants were aware of the settlement agreement entered into in the Probate court awarding Sara 20% of “proceeds” NOT “net” proceeds, the Lawyer Defendants knowingly, consciously and wrongfully deducted their fees and expenses from Sara’s 20% of the proceeds of the Survival claims which they were not entitled to do, which also amounts to conversion. In fact, the awyer efendants deducted from Sara’s recovery the legal fees of “Sandra 2g probate attorneys, who were adverse to Sara and who took adverse positions from her in the Probate matter. The Defendant’s deducted all these fees and costs from Sara’s recovery without her permission and without authority under the settlement. On January 7, 2020, Lawyer Defendants filed a letter in the Underlying Case advising the court that the case had settled. At no time was Sara made aware of such settlement by Lawyer Defendantsor Sandra, as Administrator of the Estate. On or about April 28, 2020, Lawyer Defendants received the settlement funds. And still no one notified Sara of the settlement. On or about June 3, 2020, Lawyer Defendants drafted settlement statements that were signed by Sandra which disproportionately divided the aggregate ttlement funds favoring one beneficiary over another to the detriment of Sara Betancur and the Estate. Again, no one notified Sara of the settlement or disbursement of settlement money. Lawyer Defendants and Sandra then concealed and hid the fact of settlement and the settlement funds from Sara. Plaintiff, Sara Betancur, did not know about the settlement of the Underlying Page 7 of 13 Case against LA Fitness, or the settlement hearing until long after the settlement monies were disbursed (to everyone but her) which s well after June 12, 2020, when Sandra signed the settlement statements for disbursement of the settlement funds. As a result of the above acts and omission by Lawyer Defendants and Sandra, and their breach of fiduciary duties owed to Sara, and/or their negligent acts and/or omissions, Sara’s Wrongful Death and Bystander claims and causes of action against LA Fitness were barred by the statute of limitations, two years after the death of her husband. Further, on or about April 1, 2016, Sara and Lawyer Defendants executed a Consent to Refer Agreement, in which Lawyer Defendants failed to disclose the amount or share of the attorney’s fee(s) that each lawyer or law firm would receive, as required by the Texas Disciplinary Rules of Professional Conduct §1.04. As such, Lawyer Defendants violated the Texas Disciplinary Rules of Professional Conduct §1.04, and the Lawyer Defendants should forfeit any and all attorney’s fees paid to them pursuant to the underlying case. In the same agreement, the Lawyer Defendants agreed to be jointly responsible for their conduct in this matter. Il PLEA TO THE JURISDICTION Application for Temporary Administration of the Estate of Juan Carlos Betancur, was filed on December 28, in statutory Probate Court No. 1 in Collin County, Texas. Sandra Betancur was appointed as Independent Administrator of the Estate of Juan Betancur by statutory Probate Court No. 1 in Collin County, Texas on January 25, in Cause No. PBI 2201-2017. (See attached Exhibit D That administration was concluded three years ago and there is no ongoing probate proceeding. A statutory probate court has the general jurisdiction of a probate court as provided by the Estates Code, and the jurisdiction provided by law for a county court to hear and determine Page 8 of 13 actions, cases, matters, or proceedings instituted under certain provisions of the Health and Safety Code. See TEX.GOV'T CODE ANN. § 25.0021 (West Supp. 2017). It is a court of limited jurisdiction. See Stauffer v. Nicholson , 438 S.W.3d 205, 213 (Tex.App.Dallas 2014, no pet.), citing In re United Services Automobile Association, 307 S.W.3d 299, 302 03 (Tex. 2010 (contrasting the limited jurisdiction of statutory probate courts with the general jurisdiction of district courts). Statutory probate courts are courts of limited jurisdiction. See Stauffer v. Nicholson, 428 S.W.3d 205, 213 (Tex.App.Dallas 2014, no pet.). Section 32.001 of the Texas Estates Code establishes original probate court jurisdiction: (a) All probate proceedings must be filed and heard in a court exercising original probate ju diction. The court exercising original probate jurisdiction also has jurisdiction of all matters related to the probate proceeding as specified in Section 31.002 for that type of court. Defendant Sandra Betancur’s sole basis for her plea to the jurisdiction is that the Probate Court No. 1 in Collin County, Texas has exclusive jurisdiction for any claims against Sandra Betancur in her capacity as Administrator. (Motion at p. 2) Texas Estates Code §32.005 provides that: In a county in which there is a statutory probate court, the statutory probate court has exclusive jurisdiction of all probate proceedings regardless of whether contested or uncontested. A cause of action related to the probate proceeding must be brought in a statutory probate court unless the jurisdiction of the statutory probate court is concurrent with the jurisdiction of a district court as provided by Section 32.007 or with the jurisdiction of any other court. Emphasis added) The exception in Texas Estate Code Section 32.007 provides that: A statutory probate court has concurrent jurisdiction with the district court in: (1) a personal injury, survival, or wrongful death action by or against a person in the person’s capacity as a personal representative Page of (2) an action by or against a trustee; (3) an action involving an inter vivos trust, testamentary trust, or charitable trust, including a charitable trust as defined by Secti 123.001, Property Code; (4) an action involving a personal representative of an estate in which each other party aligned with the personal representative is not an interested person in that estate; (5) an action against an agent under a power of attorney arising out of the agent’s performance of the duties of an agent; and (6) an action to determine the validity of a power of attorney or to determine an agent’s rights, powers or duties under a power of attorney. (Emphasis added) Plaintiffs claims in this case arise from her Wrongful Death, Bystander and Survival claims (all personal injury) related to the death of her husband Juan Betancur and the subsequent tortious acts and omissions committed by all Defendants herein, including the lawyers and Sandra Betancur as personal representative. These pending claims are all related to the underlying personal injury claims Sandra Betancur’s standing as the personal representative of the estate of SARA’s husband was based on the contractual agreement between Sara and Sandra which was approved by the probate court. In this pending matter, Plaintiff seeks a judgment for money damages for the injuries and losses she sustained in the underlying personal injury matter as a result of these Defendants breach of fiduciary duty, conspiracy, tortious interference, conversion, theft and fraud related specifically to her personal injury claims that were lost because of All of the defendant’s concerted efforts. The claims asserted by Plaintiff fall under the categories listed in section 32.007, and therefore the probate court’s jurisdiction over this case is concurrent. Texas Estates Code gave the statutory probate court in Collin County, Texas concurrent not exclusive jurisdiction. See King v. Deutsche Bank Nat’l Tr. Co., 472 S.W.3d 848, 856 (Tex.App.Houston [1 Dist.] 2015, no pet.) (holding that section 32.005 “confers on statutory probate courts exclusive jurisdiction Page of over causes of action related to a probate proceeding unless Section 32.007 provides that the action is subject to concurrent jurisdiction in a district court.”). Plaintiff respectfully submits that the Fort Bend County district court has subject matter jurisdiction, has concurrent jurisdiction, and Defendant Sandra Betancur’s plea to the jurisdiction should be denied in its entirety. Alternatively, if this court deems that the Collin County Probate court has exclusive jurisdiction, and that the exceptions cited under the statute do not apply to this case, then Plaintiff requests that this court transfer this action to Probate Court No. 1 in Collin County, Texas. IV. PLEA IN ABATEMENT Next, Defendant Sandra Betancur argues that a district court in Harris County, Texas has dominant jurisdiction because it was filed first. (Motion at p. 2) Pending in Harris County, Texas, is a lawsuit involving the Plaintiff and only the Lawyer Defendants from this case. See Cause No. 2020-39035; Sara Betancur vs Guerra & Farrah, PLLC, et al; In the 157th Judicial District Court (the “Harris County Lawsuit’) However, dominant jurisdiction may only arise where there are two or more cases that are inherently related because they involve the same parties and the same controversy. Jn re Volkswagen Clean Diesel Litigation, 557 $.W.3d, 73, 76 (Tex. App.—Austin 2017, no pet.). Here, the same parties are NOT involved. As Plaintiff has previously briefed the Court in her response to a motion to transfer venue after objections by the lawyer defendants, the Judge in the Harris County Lawsuit refused to add Sandra Betancur as a party to that case denying Plaintiff's motion for leave to add her as a party. Similarly, after objections by the lawyer defendants, the Judge in the Harris County Lawsuit has also ruled that causes of action against the lawyer defendants that occurred after Page 11 of July 26, 2016 will be allowed to be heard in that case. Because the statute of limitations had not expired on her claims against Sandra Betancur, or the claims against the attorneys after July 26, Plaintiff was forced to file this pending matter, and chose Fort Bend County, where Defendant Sandra Betancur resides The two lawsuits do not involve the same parties or claims and therefore, abatement would be improper. Vv. JOINDER IN MOTION TO TRANSFER VENUE Defendant Sandra Betancur has also filed a joinder in the Motion to Transfer Venue of this matter to Harris County filed by L. Lee Thweatt and Terry & Thweatt, P.C. Accordingly, Plaintiff incorporates her previously filed response in opposition to the Motion to Transfer Venue as if it was set forth herein for all purposes. (See attached _ xhibit WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that (1) Defendant Sandra Betancur’s Plea to the Jurisdiction be denied in its entirety, or alternatively, Plaintiff prays that his matter be transferred to Probate Court No. One in Collin County, Texas; (2) Defendant Sandra Betancur’s Plea in Abatement be denied in its entirety; (3) the Motion to Transfer Venue pending before this Court be denied in its entirety, and (4) all other and further relief, general and special, at law and in equity, to which Plaintiff may show h self justly entitled. Respectfully submitted, EARS RAWFORD L.L.P. By: /s/ Ross A. Sears, IT Ross A. Sears, II State Bar No. 17960011 1200 Rothwell Street Houston, Texas 77002 Page 12 of Email: ross@searscrawford.com Telephone (713) 223-3333 Facsimile (713) 223-3331 ATTORNEYS FOR PLAINTIFF CERTIFICATE OF SERVICE Thereby certify that a true and correct copy of the foregoing instrument was served pursuant to the Texas Rules of Civil Procedure on the following on August 5, 2022: Ross A. Sears, II Ross A. Sears, II Page 13 of Ben a Sy ? CAUSE NO. PB1-2201-2017 ESTATE OF IN THE PROBATE COURT JUAN CARLOS BETANCUR, OF DECEASED COLLIN COUNTY, TEXAS JUDGMENT DECLARING HEIRSHIP On January 25, 2019 came on to be heard the sworn Application for Heirship Determination in the Estate of Juan Carlos Betancur, deceased (“Decedent”), filed on June 12, 2018, wherein Sandra Betancur is the Applicant, and Decedent’s unknown heirs and heirs whose whereabouts are unknown are Defendants, and it appears to the Court and the Court so finds that all parties interested in the Estate of Decedent have been made parties to the Application, have filed written waivers of service of citation, have appeared and answered herein, or have been duly and legally served with citation as required by law; that the Court appointed Brian Hill to be Attorney Ad Litem to appear and represent Defendants and such Attorney Ad Litem did so appear and represent Defendants; that the Court has jurisdiction of the subject matter and all persons and parties; that the evidence presented and admitted fully and satisfactorily proves each and every issue presented to the Court; and that Decedent died intestate and that the heirship of Decedent has been fully and satisfactorily proved as well as the identity of the nature of Decedent’s property as being separate or community and the interest and shares of each of the heirs therein. The Court finds and it is ORDERED by the Court that the names and places of residence of the heirs of Decedent and their respective shares and interests in the real and personal property of the Decedent are as follows: Share and Interest in Name and Relationship Residence Address Real and Personal Property Sara Betancur 10022 Sable Meadow Ct. . 1/3 life estate in separate common-law wife Houston, Texas 77064 real property; judgment Declaring Heirship Page 1 of 2 BEN000028 y 1/3 interest in separate personal property. Briseis Betancur 20531 Fertile Valley Ln. 1/2 interest in separate real daughter Richmond, Texas 77407 property subject to Sara Betancur’s 1/3 life estate; 1/3 interest in separate personal property; 1/2 interest in Decedent’s 1/2 community real and personal property. Aiden Betancur 20531 Fertile Valley Ln. 1/2 interest in separate real son Richmond, Texas 77407 property subject to Sara Betancur’s 1/3 life estate; 1/3 interest in separate personal property; 1/2 interest in Decedent’s 1/2 community real and personal property. It is ORDERED that Brian Hill, the Attomey Ad Litem appointed to represent the interests of the Defendants, is allowed a fee of $ S 7 Laie shall be paid out of the assets of Decedent’s Estate. Signed this 25" day of January 2019. Od HON. WI ELDON S. COPE] JUDGE PRESIDING Judgment Declaring Heirship Page 2 of 2 BEN000029 —x TT —a TERRY & THWEATT,P.C — — TRIAL LAWYERS— HWEAIT Ithweatt@ tenythweatt.com July 26, 2016 Ms. Sara Betancur 10022 Sablemeadow Houston, Texas 77064 Via Electronic Mail and Federal Express Re: Withdrawal of representation Our File: 546 Dear Sara: Thank you for taking the time to visit with me by phone yesterday. As discussed, this letter provides written confirmation to you that our law firm (Terry & Thweatt, P.C.) and the Law Offices of Guerra & Farrah, PLLC, are both withdrawing as your counsel for all claims related to the death of Juan Betancur. Y ou do not owe any attorney fees or case expenses to either of our law firms. We thank you for your time spent with us discussing this difficult matter, and wish you the very best going forward. Y ours faithfully, ERRY EATT P.C. eo L. Lee Thweatt Ck. ba T/mo One Greenway Plaza, Suite 100 | Houston, Texas 77046-0102 | Telephone: (713) 600-4710 | Facsimile: (713) 600-4706 www.terrythweatt.com Copy to: Mr. George K. Farah The Law Offices of Guerra & Farah, PLLC. 4101 Washington Ave., 3" Floor Houston, Texas 77007 Via Fax: (713) 529-6605 2|Page CASHIER'S CHECK 986834 CHASEEST Remitter: OF JUAN BETANCUR/SANDRA BETANCUR ADMSTR 12/07/2021 Void ater 7 years. 4a Pay To The SARA MARTINEZ-BETANCUR Order Of: Pay: NINE THOUSAND EIGHT HUNDRED NINETY NINE DOLLARS AND 57 CENTS $** 9,899.57 ** Drawer: JPMORGAN SHASE BANK, N.A. Do not write outside this box “Releceom Geri Memo: Rebecca Griffin, Chief Administrative Officer Note: For information only. Comment has no effect on bank's payment. JPMorgan Chase Bank, N.A. pare SS gee Sali eae Se Columbus, OH Be Sat ghar An Rea See agate es ee CAUSE NO. PB1-2201-2017 ESTATE OF IN THE PROBATE COURT JUAN CARLOS BETANCUR, OF DECEASED COLLIN COUNTY, TEXAS ORDER GRANTING ADMINISTRATION AND APPOINTING ADMINISTRATOR On January 25, 2019 came to be heard the Application for Letters of Independent Administration filed on June 12, 2018 by Sandra Betancur (“Applicant”) in the Estate of Juan Carlos Betancur, deceased. The Court heard the evidence and finds that Juan Carlos Betancur (“Decedent”) died on November 20, 2014 in Harris County, Texas; that his principal residence and estate are located in Harris County, Texas; that Decedent died intestate; that a necessity exists for the administration of Decedent’s Estate; that Sandra Betancur is qualified and not disqualified to serve as Independent Administrator of the Estate. IT IS, ACCORDINGLY, ORDERED, ADJUDGED AND DECREED that Sandra Betancur is hereby appointed Independent Administrator of the Estate of Juan Carlos Betancur, deceased. IT IS FURTHER ODERED, ADJUDGED AND DECREED that when oath has been filed, the Clerk of this Court shall issue Letters of Independent Administration on the Estate of Juan Carlos Betancur, deceased, to Sandra Betancur. Signed this 25" day of January 2019. . WELDON 8. COPELAI JUDGE PRESIDING Order Appointing Administrator and for Issuance of Letters of Administration 2020-30035 Non- Bas tf dnooo103 CAUSE NO. -293925 SARA BETANCUR, IN THE DISTRICT COURT OF Plaintiff, VS. SANDRA BETANCUR, INDIVIDUALLY, § AND AS ADMINISTRATOR OF THE ESTATE § OF JUAN BETANCUR; L. LEE THWEATT, § INDIVIDUALLY, TERRY & THWEATT, P.C.; § GUERRA & FARAH, PLLC; § FT. BEND COUNTY, TEXAS FARAH LAW GROUPPLLC ; § GEORGE K. FARAH, INDIVIDUALLY, § Defendants. JUDICIAL DISTRICT PLAINTIFF RESPONSE I N OPPOSITION DEFENDANTS’ MOTION TO TRASFER VENUE COMES NOW, Plaintiff SARA BETANCUR (hereinafter “Plaintiff” or “Sara”) and files her response in opposition to Thweatt and all other Defendants’ Motion to Transfer Venue (Motion) and in support of such, respectfully show the following: INTRODUCTION This is a case against the Executor of the Estate of Juan Betancur (Plaintiffs common law husband) a Plaintiff's former lawyers for negligence, conspiracy, breach of fiduciary duties, and other claims related to the settlement and disbursement of funds from an underlying personal injury case. 2 Venue is proper in Fort Bend County, Texas because one of the defendants resides inF t Bend County. The law is clear that Plaintiff can file suit where any defendant resides. See Tex. Civ. Prac. Rem. Code Ann. § 15.005. Sandra Betancur resides in Ft Bend County, Texas and therefore venue is absolutely proper and appropriate here. Page of Thweatt Defendants (with joinder by the other Defendants) seek to now transfer venue of this case to Harris County where Plaintiff originally tried to file it, and Defendants objected. These defendants previously opposed and objected to Plaintiff's attempts to bring these claims in that Harris County awsuit and now ignore the fact that the Judge in the Harris County case specifically ordered that Plaintiff should file a separate lawsuit, which she did, this lawsuit! Defendants got what they asked for and now want to complain about it. They convinced the Harris County Court to disallow this proceeding to be heard in the same case. Plaintiffs counsel notified the court and opposing counsel that the statute of limitations on these claims had not yet expired and therefore, if the court denied Plaintiff the right to pursue all these related claims in the same court, Plaintiff would be force to file a separate suitThe court even discussed options with Plaintiff's counsel on where to file suit: 1) in the county where the probate matter was handled (Collin County); 2) in the county where Defendant Sandra Betancur resides (Fort Bend County); 3) as a new case in Harris County; or 4) As a severed or sub file of the pending Harris County case. Plaintiff argued that judicial economy and convenience should mandate that the claims be ried together in the same Harris County case, because of the similarity of claims and witnesses and the fact that all claims arise out of the same set of facts. However, the Lawyer Defendants, led by Defendant Thweatt vigorously opposed Plaintiff's motion and asked the Judge to dismiss Plaintiff's new/timely claims from the case, knowing, that based on statements from Plaintiffs counsel and the comments from the court, that a new lawsuit would have to be filed, and 2 of the 3 possible counties were NOT Harris County. These same Defendants now beg this court to send the case back to where Plaintiff tried to file it to begin with. This reminds one of the old adage “be careful what you ask for”. The Defendants were happy to win the immediate battle but id not think about how that would affect them in the war. Now that the very thing Plaintiff's Page of counsel warned them would happen, has happened and now they want to try to forum shop the case and dictate where Plaintiff must file the new case that they forced Plaintiff to file. The law does not work that way and the law does not permit Defendants to do that. ARGUMENT & AUTHORITIES PLAINTIFF’S CHOICE OF VENUE, IF PROPER, CANNOT BE DISTURBED laintiff chooses venue by deciding where to file a lawsuit. See In re Team Rocket, 256 S.W.3d 257, 259 (Tex. 2008). Texas statutes makes that clear. Tex. Civ. Pac. Rem. Code Ann. § 15.002 The statutes also make it clear that in a suit in which the plaintiff has established proper venue against a defendant, the court also has venue of all the defendants in all claims or actions arising out of the same transaction, occurrence, or series of transactions or occurrences. See Tex. Civ. Prac. Rem. Code Ann. § 15.005. Additionally, i ore than one county would be appropriate venue choices, the plaintiff's choice controls. See Moveforfree.com, Inc. v. David Hetrick, Inc., 288 S.W.3d 539, 542 (Tex.App.—Houston [14 Dist.] 2009, no pet.). See also Velasco v. Texas Kenworth Co., 144 S.W.3d 632, 635 (Tex.App.—Dallas 2004, pet. denied). Venue may be proper in more than one county under the venue rules. In general, plaintiffs are allowed to choose venue first, and the plaintiff's choice of venue cannot be disturbed as long as the suit is initially filed in a county of proper venue. See Jn re Henry, 274 S.W.3d 185, 190 (Tex.App.—Houston [1 Dist.] 2008, orig. proceeding). In this case, Plaintiff's venue choice was proper in Fort Bend County because efendant Sandra Betancur resides there. is more convenient for Defendant Sandra Betancur, Page of who lives there. Therefore, because this suit was filed in a county of proper venue, Plaintiffs choice of venue in Fort Bend County cannot be disturbed. Jd. THWEATT’S REQUEST TO TRANSFER THIS LAWSUIT HARRIS COUNTY IS MISLEADING AND DISENGENOUS Pending in Harris County, Texas, is a lawsuit involving the Plaintiff and only the Lawyer Defendants from this case. See Cause No. 2020 39035; Sara Betancur vs Guerra & Farrah, PLLC, et al; In the 157 Judicial District Court (the “Harris County Lawsuit”) Mr. Thweatt’s attempts to focus the Court on the Harris County Lawsuit as a proper Court for venue are misplaced. Plaintiff attempted to add Defendant Sandra Betancur to the Harris County Lawsuit Ex. A Plaintiff attempted to do the very thing that Defendants now ask for, and Defendants objected and won. See Ex. B Court denied Plaintiff's motion for leave to add these new claims See Ex. G, 4/4/22 Order) The statute of limitations for Plaintiff's claims against Ms. Betancur and Mr. Thweatt have not expired so Plaintiff is absolutely within her rights to file this lawsuit. The very claims that are now pending in this honorable court in Fort Bend County are the same claims that Plaintiff attempted to add to the pending case in Harris County. The Defendants and the court said Plaintiff should be forced to file a separate suit and they have done that. The 3 county/venueoptions as listed above were Collin County (too far and not convenient to either party); Harris County or Fort Bend County (where defendant Sandra Betancur lives). Pursuant to the rules, Plaintiff, NOT the defendant gets to choose the venue. Plaintiff chose an appropriate venue that is convenient to Plaintiff and the Defendant Sandra Betancur. As stated above, the Harris County court, based on these same Defendant’s objections, ruled that Plaintiff must file these claims separately from the Harris County pending matter and Ex. Page of stated above, over the course of numerous hearings, when the subject of these Fort Bend County claims arose, counsel for Plaintiff advised the Court that the statute of limitations had not expired on Plaintiff’s claims against these Defendants and advised that if those cla ms were not included or allowed in the pending Harris County case then they would have to be brought in a separate lawsuit. (See Sears Affidavit) he Court advised counsel for Plaintiff to file a separate lawsuit wherever he thought appropriate. At an oral hearing on May 16, 2022, for which there was no transcript, the Court told Plaintiff's Counsel in front of the movants/attorneys the following: “Counsel you can file a separate lawsuit containing these issues, in Collin County, or wherever the probate matter proceeded, the county where Sandra Betancur lives, or you can file it as a sub matter in this Court, but given my previous rulings, you may ot want me to be the person hearing that case. It is entirely up to you, but I’m not going to allow those issues in this pending case. I’ll let you decide how you want to handle that.” (See , Sears Affidavit) The Court determined that filing a separate lawsuit was the appropriate course of action. On June 1, 2022, the Court in the Harris County Lawsuit issued an order for a status hearing the claims at issue in this Fort Bend County case and stated as follows: “ On April 4, 2022, the Court granted a motion for summary judgment in part and held that duties at issue in this case terminated on July 26, 216. After that order, Plaintiff filed her 5 and 6 amended petitions. In those petitions, the Plaintiff continues to assert that Post 2016 Conduct serves as the basis for additional legal malpractice and/or fiduciary duty claims. Despite the Court’s request that such claims be filed in a separate lawsuit, or a case severed from this one, no such action has taken place (that the Court is aware of) ... It is the Court’s belief that the Post 2016 Claims belong in a separate laws specifically because they are prejudicial and confusing as to the 2016 claims...” (See , 6/1/22 Order) In accordance with the Court’s June 1 Order, Plaintiff filed this lawsuit in Ft. Bend County, where defendant Sandra Betancurresides . On June 6, 2022, Plaintiffs counsel sent an email to the court advising that this Fort Bend County case had been filed making the court’s requirement for status conference moot. Page of See Ex. E) In response to this notice, the court passed the status conference as it was no longer an issue for the court to address. Mr. Thweatt should not be allowed to object in Harris County that the adding of party and trying ese issues in the Harris County Lawsuit would be improper before the Harris County Court and then come before this Court and take a completely opposite position. THWEATT’S MOTION CONTAINS BASELESS ARGUMENTS IN SUPPORT OF HIS DEFENSE AND LITTLE ON THE MERITS OF THE ACTUAL REQUEST TO TRANSVER VENUE Defendant Thweatt spends the vast majority of his motion to transfer venue arguing his defense of the case (in a